Citation Nr: 21029111 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-48 113A DATE: May 12, 2021 ORDER An initial rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for recurrent headaches is remanded. Entitlement to service connection for left hip trochanteric bursitis is remanded. Entitlement to an effective date prior to August 27, 2013 for the award of service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an effective date prior to August 27, 2013 for the award of service connection for pericarditis is remanded. Entitlement to an effective date prior to July 8, 2016 for the award of service connection for tinnitus is remanded. Entitlement to a rating in excess of 50 percent for PTSD is remanded. Entitlement to an initial rating in excess of 10 percent for pericarditis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260. CONCLUSION OF LAW There is no legal basis for the assignment of a schedular rating in excess of 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.3, 4.7, 4.87, Diagnostic Code 6260 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from April 1983 to April 2003. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2015 and September 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in September 2020. A transcript of the hearing is of record. The record indicates that the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for TDIU in a September 2016 rating decision. In a September 2016 VA Form 21-0958, Notice of Disagreement (NOD), the Veteran did not appeal the claim for TDIU. In addition, the Veteran did not file a separate NOD appealing the claim for TDIU within one year of the September 2016 rating decision. However, in a February 2021 written statement, the Veteran stated he is unable to work because of limited physical mobility. Thus, the issue of TDIU is currently before the Board. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is part of the claim for an increased rating). Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2020). The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"). Regarding the duty to assist, the Veteran has not raised any specific issues with the duty to assist. See Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran's complete service treatment records (STRs) have not been added to the claims file. However, the Veteran is currently in receipt of the maximum schedular rating available for tinnitus and obtaining his STRs would not impact the rating assigned for tinnitus. Accordingly, appellate review may proceed without prejudice to the Veteran's claim for an increased rating for tinnitus. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Rating Tinnitus The Veteran generally contends he is entitled to an increased rating for his service-connected tinnitus. See Board Hearing Transcript, dated September 2020. The Veteran has been assigned a 10 percent rating for his tinnitus under Diagnostic Code 6260. 38 C.F.R. § 4.87. Pursuant to Diagnostic Code 6260, a 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Service Treatment Records and Post-Service Treatment Records A review of the claims file illustrates that a complete copy of the Veteran's STRs has not been obtained. Furthermore, the record does not reflect that all actions needed to obtain the Veteran's STRs have been taken, including contacting the Veteran to inform him of the unavailability of his complete STRs, and to ask him to submit any copies he has of these records. A May 2015 deferred rating decision reflects that the Veteran was to be sent a 10-day STR letter. However, a review of the claims file illustrates that such letter was not sent to the Veteran. March 2015 and May 2015 rating decisions reflect that the Veteran's STRs were unavailable for review, but the rating decisions do not constitute notice that the Veteran's STRs have not been located. As such, a remand is necessary to complete further development for the Veteran's STRs as they could potentially have an impact on the remanded claims, and if they are unvailable, to inform the Veteran as to such per VA policy. Additionally, in a correspondence received by VA in April 2016, the Veteran identified relevant outstanding private treatment records from Dr. V.G. for treatment received in February 2016, in particular related to his headaches and PTSD. A remand is required to allow VA to obtain authorization and request these records. Further, although the Veteran testified at the September 2020 hearing that he had not received treatment from VA, the record reflects that he enrolled in healthcare with VA in 2010. Therefore, an attempt should be made to ensure that there are no outstanding VA treatment records. 2. Entitlement to service connection for recurrent headaches is remanded. A remand is required to obtain an additional VA opinion as to the etiology of the Veteran's headache condition. The record reflects that the Veteran received a Purple Heart for courageous action during an explosion that occurred in June 1996 during his service Saudi Arabia. The Veteran alleges that his headaches began after the explosion and have continued. Following a July 2016 VA examination, the VA examiner opined that the Veteran's headache condition was less likely than not incurred in or caused by the in-service explosion. In support of the opinion, the VA examiner noted the Veteran's pulsating or throbbing head pain on the left side that worsens with physical activity. The examiner noted that the Veteran's headaches are associated with nausea, vomiting, and sensitivity to light and sound. The examiner noted that there is insufficient documentation in the Veteran's records to confirm a service-related condition, and the examiner noted that the Veteran's exit examination was not available for review. The July 2016 VA opinion does not reflect consideration of the Veteran's reports in his June 2015 NOD and at the September 2020 Board hearing that he has had headaches since the explosion in 1996. Second, the July 2016 VA opinion does not reflect consideration of the December 2014 lay statement from G.R., who leased office space in the same building where the Veteran worked and met the Veteran about a year after his discharge from service, reflects that he witnessed the Veteran having to frequently lie down in a darkened room to ease his migraine headaches. As the VA opinion does not consider these pertinent lay statements, it is inadequate and a remand is necessary to obtain an additional VA opinion as to the etiology of the Veteran's headache condition. 3. Entitlement to service connection for left hip trochanteric bursitis is remanded. A remand is required to obtain an additional VA opinion as to the etiology of the Veteran's left hip condition. Following an April 2015 VA examination, the VA examiner opined that the Veteran's left hip condition was less likely than not incurred in service. In support of the opinion, the VA examiner reasoned that there is no continuity of therapy since 2003. Following a July 2016 VA examination, the VA examiner opined that the Veteran's hip condition was less likely than not incurred in or caused by the in-service explosion. In support of the opinion, the VA examiner noted that the Veteran had decreased range of motion with pain and tenderness to palpation during the examination, but the examiner stated there is no information in the Veteran's file that indicates he developed bursitis due to an explosion during service. Furthermore, the examiner noted that there are no records to confirm a service-related condition and that the Veteran's exit examination was not available to review. The April 2015 and July 2016 VA opinions do not reflect consideration of the Veteran's reports in his June 2015 NOD and at the September 2020 Board hearing that he has had bursitis since 1984 and has had pain every day since service. Second, the VA opinions do not reflect consideration of the multiple lay statements received in December 2014 attesting to observations of the Veteran's left hip pain and discomfort when walking. As such, a remand is necessary to obtain an additional VA opinion as to the etiology of the Veteran's left hip condition. 4. Entitlement to a rating in excess of 50 percent for PTSD is remanded. The Veteran most recently underwent a VA examination for his PTSD in March 2015. The record reflects that the symptoms of his PTSD have worsened since the March 2015 examination. For example, at his September 2020 Board hearing, the Veteran stated his symptoms of PTSD are "at least as consistent if not worse" since the March 2015 VA examination. Given the evidence of worsening of the Veteran's PTSD since the March 2015 VA examination and the need for more current findings necessary to rate his PTSD, a new examination is needed. 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). 5. Entitlement to an effective date prior to August 27, 2013 for service connection for PTSD is remanded. In September 2016, the Veteran submitted a NOD as to the effective date of his PTSD rating. To date, a SOC has not been issued as it relates to this issue. The Board is required to remand the claim for issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). This matter is not before the Board at this time, and will only be before the Board if the Veteran timely files a substantive appeal of the issue after the SOC is issued. 6. Entitlement to TDIU is remanded. The Veteran filed an application for TDIU in May 2016. In the May 2016 application, the Veteran filed his application based on service-connected PTSD. The AOJ denied the claim in a September 2016 rating decision. The Veteran did not file a NOD following the rating decision. However, in a February 2021 written statement, the Veteran stated he is unable to work because of limited physical mobility. Thus, as the record reflects that the Veteran may not be able to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the issue of entitlement to a TDIU must be remanded for further development. VA's Office of General Counsel has stated that, when the issue of entitlement to TDIU for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board would have jurisdiction to consider the TDIU issue. If the Board determines that further action by the AOJ is necessary with respect to TDIU, the Board should remand, rather than refer, the TDIU issue for further development. See VAOPGCPREC 6-96, ¶¶ 12, 13 (Aug. 16, 1996); Cf. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995). Therefore, the AOJ should take appropriate steps to develop and adjudicate the claim for TDIU in light of all the evidence of record. The matters are REMANDED for the following actions: 1. Take any further action deemed necessary, in accordance with appropriate procedures, to obtain the Veteran's complete service treatment records. Notably, in a May 2020 written statement, the Veteran reported that his records should be at VA in Reno, Nevada. All attempts to secure these records must be documented in the record, and the Veteran must be notified of the unavailability of any records in accordance with 38 C.F.R. § 3.159(e). 2. With any needed assistance from the Veteran, including securing from him a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for each identified provider, including from Dr. V.G. (identified in his statement received in April 2016), obtain all records of the Veteran's treatment for the Veteran's headaches and PTSD. Obtain and associate with the Veteran's electronic record any VA records. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. After completing the development requested in items 1 and 2, obtain a medical opinion from an appropriate medical professional for the Veteran's headache condition claim. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. If the medical professional determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the medical professional should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's headache condition (diagnosed as tension headaches) is related or attributable to his military service, to include the June 1996 explosion that occurred while the Veteran was engaged in combat with the enemy? In responding to the question above, the medical professional is requested to consider the Veteran's September 2020 Board hearing testimony and the written statement accompanying the June 2015 NOD regarding his headaches. In addition, in responding to the question above, the medical professional is requested to consider the December 2014 buddy statement reflecting that he met the Veteran a year after his discharge from service and has witnessed the Veteran having to frequently lie down in a darkened room to ease his migraine headaches. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completing the development requested in items 1 and 2, obtain a medical opinion from an appropriate medical professional for the Veteran's left hip condition claim. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. If the medical professional determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the medical professional should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's left hip condition (diagnosed as trochanteric bursitis) is related or attributable to his military service? In responding to the question above, the medical professional is requested to consider the Veteran's September 2020 Board hearing testimony and the written statement accompanying the June 2015 NOD regarding having bursitis since 1984. In addition, in responding to the question above, the medical professional is requested to consider the buddy statements received in December 2014 attesting to the Veteran's left hip pain and discomfort when walking. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. After completing the development requested in items 1 and 2, schedule the Veteran for an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to evaluate the severity of the Veteran's PTSD. The entire claims file should be made available to the examiner in conjunction with this request. All testing deemed necessary to rate psychiatric disorders under the criteria of the rating schedule must be conducted and the results reported in detail. 6. Issue a statement of the case as to the issue of entitlement to an effective date prior to August 27, 2013 for the award of service connection for PTSD. The statement of the case must be provided to the Veteran advising the Veteran of his appeal rights. If an appeal is perfected in this matter, the case should be returned to the Board, if otherwise in order. 7. Ensure that all notice and assistance obligations are satisfied concerning the claim for a TDIU. Forward the appropriate form (VA Form 21-8940) to the Veteran for completion, and undertake any development necessary for this claim. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.