Citation Nr: 22019719 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 18-54 979 DATE: April 2, 2022 ORDER Service connection for a liver condition is dismissed. Service connection for a traumatic brain injury (TBI) is dismissed. A disability rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to a compensable disability rating for bilateral hearing loss is remanded. Entitlement to a rating in excess of 30 percent for migraine headaches. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with mild alcohol abuse is remanded. Entitlement to a disability rating in excess of 20 percent for right shoulder labral tear is remanded. Entitlement to a disability rating in excess of 10 percent for left knee medial tibial stress syndrome is remanded. Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome with medial tibial stress syndrome is remanded. Entitlement to a compensable disability rating for left knee, limitation of extension, is remanded. Entitlement to a compensable disability rating for right knee, limitation of extension, is remanded. Entitlement to a disability rating in excess of 10 percent for left ankle sprain is remanded. Entitlement to a disability rating in excess of 10 percent for right ankle sprain is remanded. Entitlement to a disability rating in excess of 10 percent prior to March 25, 2021, and a disability rating in excess of 20 percent thereafter for cervical strain is remanded. Entitlement to a compensable disability rating prior to March 25, 2021, and a disability rating in excess of 10 percent thereafter for vertigo is remanded. For the period prior to March 25, 2021, entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is remanded. FINDINGS OF FACT 1. On April 19, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal with regard to the issues of service connection for a liver condition and a TBI is requested. 2. The current single 10 percent evaluation assigned to tinnitus disability is the maximum schedular evaluation permitted under VA rating criteria. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of service connection for a liver condition and a TBI by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. There is no legal basis for the assignment of an increased schedular disability rating for the Veteran's tinnitus disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come to the Board of Veterans' Appeals (Board) from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a liver condition and a TBI; and granted service connection for PTSD (50%), migraine headaches (30%), right shoulder disability (10%), left knee disability (10%), right knee disability (10%), left ankle disability (0%), right ankle disability (0%), cervical spine disability (10%), bilateral hearing loss (0%), tinnitus (10%), and vertigo (0%), all effective April 28, 2015. In June 2015, the Veteran filed a notice of disagreement. In an October 2018 rating decision, the RO granted the following increased ratings: PTSD (70%), right shoulder disability (20%), left ankle disability (10%), and right ankle disability (10%), all effective April 28, 2015. A statement of the case (SOC) was issued in October 2018 and a substantive appeal was received in November 2018. The Veteran testified at a Board hearing in April 2021. In a July 2021 rating decision, the RO granted the following increased ratings: cervical spine disability (20%), vertigo (10%), left knee limitation of extension (separate 0%), and right knee limitation of extension (separate 0%), all effective March 25, 2021. As the limitation of extension ratings are part and parcel of the right and left knee issues in appellate status, the Board will take jurisdiction of these issues. The RO determined that entitlement to a TDIU is moot due to his combined 100 percent rating, effective March 25, 2021. However, as will be discussed below, the Board has determined that entitlement to a TDIU prior to March 25, 2021 remains in appellate status. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 19.55. In the present case, at the April 19, 2021 Board hearing, the Veteran withdrew his appeal with regard to the issues of entitlement to service connection for a liver condition and a TBI. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Increased Rating Tinnitus Under Diagnostic Code (DC) 6260 there is no provision for assignment of an increased schedular rating or a separate 10 percent evaluation for tinnitus of each ear. The Veteran's service-connected tinnitus has been assigned a 10 percent rating which is the maximum schedular rating available for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260; see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). There is no legal basis upon which to award an increased rating nor separate schedular evaluations for tinnitus in each ear, thus the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND The SOC was issued in October 2018 and the appeal was certified to the Board in February 2019. On March 2021, the Veteran submitted a claim for a TDIU. As a result, the Veteran underwent a C&P psychiatric examination in May 2021, and in July 2021 underwent C&P examinations pertaining to the cervical spine, knees, ankles, hearing loss and vertigo. Despite such issues being in appellate status, the RO issued a July 2021 rating decision based on a March 25, 2021 date of claim. Additionally, multiple VA and private treatment records have been associated with the claims folder subsequent to the issuance of the October 2018 SOC. Remand is necessary for adjudication of the evidence of record associated with the claims folder since the October 2018 SOC and promulgation of a supplemental statement of the case (SSOC). On Remand, associate updated VA treatment records for the period from July 3, 2021. Right shoulder The Veteran most recently underwent a C&P right shoulder examination in October 2018; however, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Veteran reported flare-ups, specifically pain is worse with lifting, pulling, pushing and reaching. The Veteran reported functional limitations, such as limited prolonged lifting, pulling and pushing, and reaching. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare ups as the Veteran will need to be present and examined when weakness, fatigability or incoordination would potentially and significantly limit the Veteran's functional ability with repeated use over a period of time and during flare-ups. The examiner did not attempt to obtain relevant information regarding additional functional loss suffered during flare-ups and while the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Remand is necessary to afford the Veteran another VA examination. Entitlement to a TDIU In his March 25, 2021 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability the Veteran asserted that he became too disabled to work on April 28, 2015. He reported part-time employment at 7-Eleven from April to May 2016 and November 2019 to February 2020. For the period from April 28, 2015 to March 24, 2021 the Veteran is in receipt of a combined 90 percent rating, thus the Board has taken jurisdiction of entitlement to a TDIU per Rice v. Shinseki, 22 Vet. App. 447 (2009). See 38 C.F.R. § 4.16(a) (providing TDIU only "where the schedular rating is less than total"). On Remand, entitlement to a TDIU should be adjudicated from April 28, 2015 to March 24, 2021, to include further development such as verifying employment. The matters are REMANDED for the following actions: 1. For the period from April 28, 2015 to March 24, 2021, develop the Veteran's claim for a TDIU, to include obtaining any relevant educational and employment history, employment verification, and/or reason for termination. 2. Associate updated VA treatment records for the period from July 3, 2021. 3. Schedule the Veteran for a VA orthopedic examination with a clinician with appropriate expertise in order to ascertain the severity of his right shoulder disability. The virtual folder should be reviewed in conjunction with the examination. Any medically indicated special tests, including x-rays, should be accomplished, and all special test and clinical findings should be clearly reported. Range of motion testing of the right shoulder should be accomplished and the examiner should report functional impairment due to incoordination, weakened movement excess fatigability, pain or flare-ups in terms of additional degrees of limitation of motion. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right shoulder disability alone and discuss the effect of the Veteran's right shoulder disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 4. Readjudicate the increased rating claims and issue a SSOC, which includes consideration of all evidence associated with the claims folder since October 24, 2018. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.