Citation Nr: A26028126
Decision Date: 03/27/26	Archive Date: 03/27/26

DOCKET NO. 251204-621236
DATE: March 27, 2026

ORDER

Service connection for posttraumatic stress disorder (PTSD) is granted.

An earlier effective date of May 22, 2023, but no earlier, for entitlement to service connection for right total hip replacement is granted.

An earlier effective date of May 22, 2023, but no earlier, for entitlement to service connection for surgical scar residual right total hip replacement is granted.

An earlier effective date of May 22, 2023, but no earlier, for entitlement to service connection for bilateral sensorineural hearing loss is granted.

An earlier effective date of May 22, 2023, but no earlier, for entitlement to service connection for recurrent tinnitus is granted.

An earlier effective date of May 22, 2023, but no earlier, for entitlement to service connection for degenerative disc disease of the thoracolumbar spine with degenerative arthritis and spinal stenosis is granted.

An initial rating of 70 percent, but no higher, for right total hip replacement is granted.

An initial compensable rating for surgical scar residual right total hip replacement is denied.

An initial rating in excess of 30 percent for bilateral sensorineural hearing loss is denied.

An initial rating in excess of 10 percent for recurrent tinnitus, to include on an extraschedular basis, is denied.

An initial rating of 40 percent, but no higher, for degenerative disc disease of the thoracolumbar spine with degenerative arthritis and spinal stenosis is granted.

A total rating based on individual unemployability (TDIU) is granted.

FINDINGS OF FACT

1. The Chicago VAMC treatment records note a diagnosis of PTSD. 

2. The competent and probative evidence is in approximate balance as to whether the Veteran's current PTSD is caused by or related to his active service.

3. The Veteran's intent to file was received by VA on May 22, 2023, within a year prior to when the Veteran filed his original, complete claim for right hip, hearing loss, and spinal stenosis conditions on January 10, 2024.

4. The Veteran continuously pursued his claim for service connection for right hip, surgical scar, hearing loss, tinnitus, and lower back conditions from a May 22, 2023 intent to file.

5. Throughout the period on appeal, the Veteran's right hip replacement condition has manifested with markedly severe residual pain and limitation of motion.

6. The weight of the competent and probative evidence is against finding that the Veteran's surgical scar residual right total hip replacement is painful or unstable or result in limitation of function.

7. Throughout the period on appeal, the Veteran's hearing impairment has been no worse than Level VI in the right ear and Level VII in the left ear with exceptional patterns of hearing loss in both ears.

8. For the entire period on appeal, the Veteran's service-connected tinnitus has been manifested by ringing in the ears, and is rated as 10 percent disabling, which is the maximum schedular rating permitted for tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260.

9. The service-connected tinnitus is not productive of a disability picture that is exceptional or unusual such that the symptoms associated with the disability are not contemplated by the schedular criteria. 

10. The competent and probative evidence is in approximate balance as to whether the Veteran's degenerative disc disease of the thoracolumbar spine with degenerative arthritis and spinal stenosis has been shown to be manifested by forward flexion of the thoracolumbar spine 30 degrees or less.

11. The Veteran's service-connected disabilities meet the schedular criteria for entitlement to individual unemployability from May 22, 2023.

12. The impairment from the Veteran's service-connected disabilities combine precluded him from securing or following substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a). 

2. The criteria for an earlier effective date for the grant of service connection for right total hip replacement from May 22, 2023, but no earlier, are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 3.2500.

3. The criteria for an earlier effective date for the grant of service connection for surgical scar residual right total hip replacement from May 22, 2023, but no earlier, are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 3.2500.

4. The criteria for an earlier effective date for the grant of service connection for bilateral sensorineural hearing loss from May 22, 2023, but no earlier, are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 3.2500.

5. The criteria for an earlier effective date for the grant of service connection for recurrent tinnitus from May 22, 2023, but no earlier, are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 3.2500.

6. The criteria for an earlier effective date for the grant of service connection for degenerative disc disease of the thoracolumbar spine with degenerative arthritis and spinal stenosis from May 22, 2023, but no earlier, are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 3.2500.

7. The criteria for an initial rating of 70 percent, but no higher, for right hip replacement are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5054.

8. The criteria for an initial compensable rating for scar on back are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802.

9. The criteria for an initial rating in excess of 30 percent for bilateral sensorineural hearing loss are not met. 38 U.S.C. § 1110, 1131, 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.

10. The criteria for an initial rating in excess of 10 percent for recurrent tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.87, Diagnostic Code 6260.

11. The criteria for an initial rating of 40 percent for degenerative disc disease of the thoracolumbar spine with degenerative arthritis and spinal stenosis are met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5242-5238.

12. The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.10, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1956 to November 1959. These matters are before the Board of Veterans' Appeals (Board) on appeal from May (notice on the 14th) 2025 and August (notice on the 26th) 2025 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In the December 2025 VA Form 10182, Decision Review Request: Board Appeal, the Veteran referenced the May 2025 and August 2025 decisions and elected the Board's Evidence Submission docket. Based upon the selection of the Evidence Submission docket, the Board may consider the evidence of record as of May 13, 2025 (PTSD) and August 5, 2025 (right hip, hearing loss, tinnitus, and lower back) - the dates of the rating decisions on appeal, and evidence submitted with or within 90 days of the VA's receipt of the VA Form 10182 on December 4, 2025. See 38 C.F.R. § 20.303. If the Veteran submitted evidence that was added to the record after May 13, 2025 (PTSD) and August 5, 2025 (right hip, hearing loss, tinnitus, and lower back), and before VA received the Form 10182 on December 4, 2025, or 90 days after VA's receipt of the VA Form 10182 on December 4, 2025, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501.

While the May 2025 rating decision did not find new and relevant evidence, it addressed the merits of the PTSD issue and readjudicated it. In light of this, the Board finds that the May 2025 rating implicitly found new and relevant evidence has been received. As such, the Board does not need to revisit the new and relevant evidence aspect of this issue and may proceed to the merits of the service connection claim. Additionally, as the Board is granting in full the benefit sought (service connection), there is no harm in proceeding. 

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Establishing entitlement to direct service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative balance, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

1. Service connection for PTSD.

The Veteran contends that service connection is warranted for an acquired psychiatric disorder. The May 2025 rating decision on appeal made a favorable finding that the Veteran is diagnosed with PTSD. The Board sees no reason to disturb this favorable finding based on its review of the record. 38 C.F.R. § 3.104(c).  This competent evidence establishes the first element of service connection. 

The vast majority of the Veteran's service personnel records are presumed to have been destroyed by fire. 02/01/2024, VA 21-3101. The Board acknowledges VA's heightened duty to assist a claimant where records are deemed fire related or otherwise lost. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005).

Regarding stressor, the Veteran asserts that his psychiatric disorder is related to being a first responder to a plane crash at the Gray Airfield Base, Texas, in 1959. 12/4/2025 VA 21-4138. The Veteran submitted records from the Bureau of Aircraft Accident Archives that confirms an Air Force aircraft crash in May 1959 that resulted in multiple fatalities. 12/04/2025, Correspondence. 

An October 2025 psychological evaluation and report was completed by a private psychologist, who opined that the Veteran's PTSD is at least as likely as not related to his experiences as a first responder to a plane crash, as well as racism that he experienced during his period of active service. The private psychologist noted that the Veteran continues to have intrusive thoughts, nightmares, panic attacks, and flashbacks related to these in-service experiences. 12/04/2025, Medical Treatment Record - Non-Government Facility. 

The Board finds that the evidence is at least in approximate balance regarding the material nexus issue of whether the Veteran's PTSD is related to his active service. 38 U.S.C. § 5107(b). For example, the Board places probative weight on October 2025 psychological evaluation, as the private psychologist considered the relevant medical history and provided a thorough rationale in support of the opinion. On the other hand, the record is devoid of evidence indicating that the Veteran's PTSD is not otherwise related ot his active service. 

As such, as all three service connection elements have been established, the Board finds that service connection for PTSD is warranted. 38 C.F.R. § 3.304(f).

Earlier Effective Date

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400.

Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claim for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the formal claim. 38 C.F.R. § 3.155.

2. An earlier effective date for entitlement to service connection for right total hip replacement.

3. An earlier effective for entitlement to service connection for surgical scar residual right total hip replacement.

4. An earlier effective date for entitlement to service connection for bilateral sensorineural hearing loss.

5. An earlier effective date for entitlement to service connection for recurrent tinnitus.

6. An earlier effective date for entitlement to service connection for degenerative disc disease of the thoracolumbar spine with degenerative arthritis and spinal stenosis.

The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for right total hip replacement, surgical scar, bilateral hearing loss, tinnitus, and lower back disabilities. See 12/4/2025 VA Form 10182, at 7.

Procedurally, the August 2025 rating decision granted service connection for right total hip replacement, surgical scar, bilateral hearing loss, tinnitus, and lower back disabilities, effective January 10, 2024, the date VA received the Veteran's fully developed claim (VA 21-526EZ). 

Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found but shall be no earlier than the date of receipt of the application therefore. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400.

For supplemental claims received more than one year after the date on which the AOJ issues notice of a decision, the effective date will be fixed in accordance with the date entitlement arose but will not be earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.2500(h)(2).

For continuously pursued claims, 38 C.F.R. § 3.2500(h)(1) states that except as otherwise provided by other provisions of this part, including § 3.400, the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options as specified in paragraph (c) of this section within one year of the issuance of the decision.

The Appeals Modernization Act (AMA) does not include any limitations on a claimant's ability to file supplemental claims, if new and relevant evidence is provided or identified with each supplemental claim. 38 C.F.R. §§ 3.2500(c), 3.2501. However, to use supplemental claims to continuously pursue review of an issue and thereby protect the earliest possible effective date in the event of an award of benefits, the supplemental claims must be filed within one year of notification of the last AOJ or Board decision. 38 C.F.R. § 3.2500(h).

Here, on May 22, 2023, VA received the Veteran's intent to file. 05/22/2023, VA 21-0966 Intent to File. A complete claim regarding right hip, hearing loss, and spinal stenosis conditions was filed within a year of VA's receipt of this form. See 01/10/2024, VA 21-526EZ Fully Developed Claim, at 3. The Veteran's claims were granted in an August 2025 rating decision. 

The Board finds that an earlier effective date of May 22, 2023, but no earlier, is warranted for the grant of service connection for right total hip replacement, surgical scar, bilateral hearing loss, tinnitus, and lower back disabilities. 38 C.F.R. § 3.2500(h)(1). The record shows that the Veteran filed an intent to file on May 22, 2023, and, within a year, filed a fully developed claim on January 10, 2024. 38 C.F.R. § 3.155(b). 

The record does not show a prior claim identifying right total hip replacement, surgical scar, bilateral hearing loss, tinnitus, and lower back disabilities. As such, an even earlier effective date is not warranted. The Veteran's attorney representative did not contend that an even earlier date was warranted. 12/4/2025 VA Form 10182, at 7-8. 

Therefore, the Veteran is entitled to an effective date of May 22, 2023, the date of the intent to file his claim for benefits that was ultimately granted in the August 2025 rating decision. 38 C.F.R. §§ 3.155(b), 3.2500(h)(1). Accordingly, an effective date of May 22, 2023, but no earlier, is granted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.2500(h)(1).

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

7. An initial rating in excess of 50 percent for right total hip replacement.

The Veteran contends that he is entitled to an initial rating in excess of 50 percent for status post right hip replacement, evaluated under Diagnostic Code 5054.

Hip replacements are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5054. Under Diagnostic Code 5054, a 50 percent rating is warranted for moderately severe residuals of weakness, pain or limitation of motion. A 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion following implantation of the prosthesis. A 90 percent rating is warranted if the affected hip demonstrates, following implantation of a prosthesis, painful motion or weakness, such as to require the use of crutches. The maximum 100 percent rating is awarded only on a temporary basis following the year of implantation of the prosthesis or resurfacing. See 38 C.F.R. § 4.71a, Diagnostic Code 5054.

VA revised Diagnostic Code 5054 slight in February 2021. VA added "resurfacing" to the hip replacement code. It also reduced the convalescent period from 1 year to 4 months (after an initial month under 4.30) and defined "prosthetic replacement" as a total replacement of the head of the femur or of the acetabulum. Additionally, now, resurfacing is rated under DCs 5250-55, with no minimum rating.

A May 2024 VA examination noted moderately severe residuals of weakness, pain or limitation of motion. Additionally, the examiner more specifically described the Veteran's limitations due to his right hip disability. The Veteran has difficulty standing or walking during flare-ups, which occur daily and last approximately one hour in duration. 05/15/2024, C&P Exam.

An October 2025 medical opinion was provided by a private physician, who assessed the severity of the Veteran's right hip disability. The physician noted that the Veteran requires substantial compensatory effort when engaging in prolonged walking, stair climbing, and rising from a chair. Additionally, the Veteran has a history of instability and falls related to his right hip disability. The physician opined that the Veteran experiences markedly severe residual weakness, pain, or limitation of motion. 12/04/2025, Medical Treatment Record - Non-Government Facility, pages 6-15. 

The Board finds that throughout the period on appeal, the evidence is at least approximately balanced that the Veteran's right hip replacement condition has manifested with markedly severe residual pain and limitation of motion. The VA examination notes that the Veteran experiences pain throughout range of motion testing, and that the Veteran is impaired in his ability to walk and stand during daily flare-ups of his right hip disability. Additionally, the October 2025 medical opinion notes that the Veteran requires substantial compensatory effort in ambulating and has a history of falls related to his right hip disability. 

The Board these associate symptoms and impacts are more nearly approximated by markedly severe residual pain and limitation of motion. Accordingly, the evidence more closely approximates the criteria for a 70 percent rating, and the higher rating is warranted. 38 C.F.R. §§ 4.3, 4.7.

A higher rating of 90 percent is not warranted because the condition has not yet been shown to require the use of crutches. For example, the May 2024 VA examination report did not show the use of any assistive devices. And, while the October 2025 medical opinion mentions the use of a walker, the physician did not indicate with any specificity as to the regularity of use of assistive devices and whether the use of a walker is analogous to requiring the use of crutches. Additionally, as this is a listed condition in the schedule, rating by analogy is not appropriate. Copeland v McDonald, 27 Vet. App. 333, 336-37 (2015). For these reasons, the claim for an initial rating of 70 percent, but no higher, for the Veteran's residuals of right hip replacement is granted. 38 C.F.R. § 4.71a, Diagnostic Code 5054.

8. An initial compensable rating for surgical scar residual right total hip replacement.

The Veteran's surgical scar residual right total hip replacement is rated under Diagnostic Code 7802.

Under Diagnostic Code 7802, a scar at a location other than the head, face, or neck that is superficial warrants a 10 percent rating if its area exceeds 144 square inches (929 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7802. A superficial scar is one that is not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, DC 7802, Note (1).

Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118.

The Board finds that the weight of the persuasive evidence is against the assignment of a compensable rating for the Veteran's scar under Diagnostic Code 7802 as there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. Rather, the May 2024 VA examination indicates that the Veteran has a lineal surgical scar from surgery that is 20.0 cm in length. The scars are not painful or unstable. The scar does not result in limitation of function. 05/14/2024, C&P Exam.

The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's scars are not of the head, face, or neck, are not deep and nonlinear, and are not associated with underlying soft tissue damage. Although they are superficial and not associated with underlying soft tissue damage, they do not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's scars are not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, and 7804 are inapplicable.

The Board acknowledges that the Veteran believed that the disability on appeal had been more severe than the assigned disability rating reflects. Moreover, the Veteran was competent to report observable symptoms, and any such reports were credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he did not assert, and the medical evidence does not show, that the Veteran's scars are manifested by any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. The Board finds that the competent medical evidence, to include that the VA examination noted above, outweighs the Veteran's statements as it was gathered by trained medical professionals for the purpose of assess his scars.

In conclusion, the Board finds that the persuasive evidence is against the Veteran's claim for a compensable rating for his surgical scar. As such, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

9. An initial rating in excess of 30 percent for bilateral sensorineural hearing loss.

The Veteran asserts entitlement to an initial rating in excess of 30 percent for his bilateral hearing loss.

Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. § § 4.85, 4.87. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The rating criteria for hearing loss provide tables for combining the level of loss in the ears. Table VI is used to determine a Roman numeral designation for each ear based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. Table VIA designates a Roman numeral based on the average pure tone thresholds only. Table VI is typically used, but Table VIA may be used for exceptional patterns of hearing loss. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for impairment in both ears. 38 C.F.R. § § 4.85, 4.86.

When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b).

In a September 2024 VA examination, pure tone thresholds, in decibels, were as follows:

	HERTZ

 	1000	2000	3000	4000	Avg

RIGHT	70	65	65	60	65

LEFT	75	75	70	65	71.25

Speech audiometry revealed speech recognition ability of 64 percent in the right ear, and 64 percent in the left ear. 09/11/2024, C&P Exam. The examiner, an audiologist, found the test results to be valid for rating purposes. As such, the Board finds this evidence to be competent and probative of level of severity of the Veteran's hearing loss. 

The Veteran had exceptional patterns of hearing impairment in both ears per 38 C.F.R. § 4.86(a) as the pure tone threshold at each of the four specified frequencies is 55 decibels or more. As such, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately.

The above findings from the September 2024 VA examination translate to Level VI in the right ear under Table VI and Level V under Table VIA. 38 C.F.R. § 4.85, Table VI, VIA. For the left ear, the findings translate to Level VII under Table VI and Level VI under Table VIA.

When the assigned Roman numerals are applied to Table VII, this results in a 30 percent rating for the Veteran's bilateral hearing loss disability. 38 C.F.R. § 4.85.

Regarding impacts from his hearing loss, at the September 2024 VA examination, the Veteran reported it was difficult to understand others on the phone and when he is attending church. The Veteran is competent to report these symptoms, and the Board also finds him credible, as the statements on these points are consistent. See Jandreau, 492 F.3d at 1377. Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. As such, the medical evidence and test results are more probative and outweigh the lay subjective reports of a more severe degree of disability because they directly address the rating criteria for the Veteran's hearing loss. Additionally, VA's Schedule for Rating Disabilities has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See  Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that "the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech"). As such, the functional effects of his hearing loss and contemplated and compensated via the Rating Schedule and the assigned levels of compensation. 38 C.F.R. § 4.1.

In this matter, the Board finds that the competent and most probative evidence of record persuasively weighs against the claim of entitlement to a rating in excess of 30 percent for bilateral hearing loss during the period on appeal. The Board has considered whether the Veteran's disability was more nearly approximated by a higher rating. However, there are no audiometric results during the period on appeal that warrant a higher rating as indicated by the September 2024 VA examination. Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to an initial rating in excess of 30 percent for bilateral hearing loss. As the most probative evidence of record persuasively weighs against an initial rating in excess of 30 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 4th 776, 781-82 (Fed. Cir. 2021) (en banc).

10. An initial rating in excess of 10 percent for recurrent tinnitus.

The Veteran's tinnitus has been assigned a 10 percent rating under Diagnostic Code 6260 during the whole period on appeal.

Diagnostic Code 6260 provides that recurrent tinnitus will be assigned a 10 percent rating. 38 C.F.R. § 4.87. Only a single evaluation will be assigned for recurrent tinnitus, whether it is perceived in one ear, both ears, or the head. Id. at Note (2). As the Veteran is already in receipt of the maximum rating available under Diagnostic Code 6260, a higher schedular rating must be denied as a matter of law.

At a September 2024 VA examination, the Veteran reported that his tinnitus impairs his ability to understand conversation and that he has to ask people to repeat themselves. 09/11/2024, C&P Exam. That notwithstanding, however, the only symptom of his tinnitus is a sizzling noise in his ears, and this is fully contemplated by Diagnostic Code 6260. Accordingly, the Veteran's claim for an increased schedular rating for tinnitus is denied as a matter of law. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (concluding that the United States Court of Appeals for Veterans Claims (Court) erred in not deferring to VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral).

Since the Veteran's service-connected tinnitus has been assigned the maximum schedular disability rating available for tinnitus, there is no legal basis upon which to award a higher schedular rating for tinnitus. As such, entitlement to an initial rating for tinnitus in excess of 10 percent is not warranted on a schedular basis. See Sabonis v. Brown, 6 Vet. App. 426 (1994).

In exceptional cases where the schedular evaluation is found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability may be approved, provided the case presents such an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). However, this case does not warrant referral for consideration of an extraschedular rating. In pertinent part, the Veteran does not contend, nor does the record otherwise reflect, that his tinnitus is manifested by symptomatology not already contemplated by the relevant schedular criteria. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

The rating criteria require that all symptomology of the disability be taken into account, and a determination be made regarding the overall severity of such symptoms. See Morgan v. Wilkie, 31 Vet. App. 162, 167-68 (2019) (explaining that extraschedular referral is "reserve[d] for those cases that are truly 'exceptional'").

Accordingly, referral to the Director, Compensation Service, for consideration of an extraschedular rating is not warranted, because the manifestations of the Veteran's tinnitus disability are accounted for in the schedular rating assigned. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Further, neither the Veteran nor his representative has raised any other issues nor have any other issues been reasonably raised by the record, in regard to the bilateral foot claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

For all these reasons, the relevant evidence is persuasively against an initial rating in excess of 10 percent for recurrent tinnitus.

11. An initial rating in excess of 10 percent for degenerative disc disease of the thoracolumbar spine with degenerative arthritis and spinal stenosis.

The Veteran contends that he is entitled to an initial rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine with degenerative arthritis and spinal stenosis, evaluated under Diagnostic Code 5242-5238.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. The next-higher 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id., at Note 1.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flareups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flareup is not observable at the time of examination.

A May 2024 VA examination conducted range of motion (ROM) testing and noted forward flexion of 90 degrees. The examiner noted pain in all directions, including on forward flexion and extension, but did not indicate where the painful motion begins in terms of range of motion. The Veteran was not able to perform passive ROM testing due to pain and risk of injury. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner did not estimate ROM during flareups and after repeated use over time. The Veteran did not have spasms, localized tenderness and guarding of the thoracolumbar spine. The examiner found that the Veteran did not have ankylosis or muscle atrophy. The Veteran did not have Intervertebral Disc Syndrome (IVDS). Additionally, the examiner noted that the Veteran experiences daily flare-ups that impact his ability to stand or walk, which will last 2-3 hours in duration, is alleviated by rest and NSAID medication, and is characterized by increased pain that is moderate in severity. 05/15/2024, C&P Exam.

An October 2025 medical opinion was provided by a private physician, who assessed the severity of the Veteran's lower back disability. The physician noted that forward flexion is functionally limited to 45 degrees and that the Veteran experiences pain immediately upon bending. Additionally, the Veteran's lower back disability causes an abnormal gait and that the Veteran cannot sit or stand for more than a few minutes. Also, the Veteran requires periods of immobilization and rest due to increased symptoms of back pain. 12/04/2025, Medical Treatment Record - Non-Government Facility, pages 6-15. 

After reviewing the pertinent evidence, the Board finds a disability rating of 40 percent, but no higher, is warranted. The disability picture with functional limitation is analogous to forward flexion of the thoracolumbar spine to 30 degrees or less. Specifically, the Board has discounted the ameliorative effective of pain medication, wherein the Veteran experiences pain immediately upon bending back and that the flare-ups of pain symptoms require periods of immobilization and rest. Where a DC does "not explicitly contemplate a veteran using medication to allay symptoms of a service-connected disability, the Board...must discount the beneficial effects of medication used." Ingram v. Collins, 38 Vet. App. 130, 135 (2025) (citing Jones v. Shinseki, 26 Vet. App. 56, 61 (2012)).

Although the Veteran's treatment records do not demonstrate forward flexion to 30 degrees or less, the Board acknowledges that passive ROM testing could not be performed due to pain and risk of injury and the Board will give the Veteran the benefit-of-the-doubt on this material issue and assign a rating of 40 percent rating. See 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242-5238.

The Board also finds that a rating in excess of the now assigned 40 percent rating is not warranted at any point during the period on appeal. The disability picture with functional limitation is not analogous to unfavorable ankylosis of the entire spine. Indeed, the October 2025 medical opinion indicates that forward flexion is functionally limited to 45 degrees, albeit with pain immediately upon bending his back. The Board finds that this evidence persuasively weighs against a finding of unfavorable ankylosis or its functional equivalent. 

In sum, the Board finds that the competent and probative evidence is approximate balance regarding whether the Veteran's symptoms most nearly approximate the criteria for an initial 40 percent rating. As such, the Board resolves doubt in the Veteran's favor and finds that the Veteran is entitled to an initial rating of 40 percent, but no more, for degenerative disc disease of the thoracolumbar spine with degenerative arthritis and spinal stenosis throughout the period on appeal.

TDIU

A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16(a).

In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).

The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019).

The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016) (emphasis in original). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id.

In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

12. Entitlement to TDIU.

The Veteran, through his attorney representative, asserts entitlement to TDIU. 12/04/2025, VA Form 10182, pages 8-10. 

Here, effective May 22, 2023, the Veteran's service-connected disabilities included: right total hip replacement, evaluated at 70 percent disabling; degenerative disc disease of the thoracolumbar spine with degenerative arthritis and spinal stenosis, evaluated at 40 percent disabling; bilateral sensorineural hearing loss, evaluated at 30 percent disabling; recurrent tinnitus, evaluated at 10 percent disabling; and surgical scar, evaluated at 0 percent disabling. Therefore, the schedular requirements for TDIU per 38 C.F.R. § 4.16(a) are met.

After affording him the benefit of the doubt on this material issue, the Board finds that the competent and probative evidence is at least in approximate balance as to whether the Veteran's service-connected disabilities combined prevented him from securing or following gainful employment. 38 U.S.C. § 5107(b).

In determining whether the Veteran was capable of obtaining and maintaining gainful employment due to his service-connected disabilities, the Board must consider the Veteran's work history, education, and any special training. See Rice, 22 Vet. App. at 452 (stating that entitlement to TDIU is based on an individual's particular circumstances).

A December 2025 vocational assessment, completed by a private clinician, who opined that the Veteran has been unable to work due to his service-connected disabilities. Specifically, the Veteran's impaired ability to perform prolonged walking and standing is sufficiently severe to preclude even a sedentary work environment. Additionally, the Veteran would be unable to satisfactorily remain on task due to pain symptoms and hearing loss.  12/04/2025, Medical Treatment Record - Non-Government Facility, pages 1-5

An October 2025 medical opinion provided by a private physician who opined that the Veteran is unable to work due to his lower back and right hip disabilities. Specifically, the physician remarked that the Veteran regular home care serves to assist with essential chores due to persistent pain and instability caused by his lower back and right hip disabilities. Additionally, the Veteran is unable to stand, walk, or sit for prolonged periods of time. 12/04/2025, Medical Treatment Record - Non-Government Facility, pages 6-15. 

The relevant, competent evidence tends to show that he is unable to maintain employment because of the combined impact of his service-connected disabilities, to include his back and right hip disabilities. The Veteran is unable to sit or stand for prolonged periods of time, which precludes most sedentary work that requires prolonged sitting. Furthermore, the Board finds that the Veteran's service-connected audio disabilities of tinnitus and hearing loss would impact this ability to communicate in the workforce. In this regard, the Veteran's hearing loss impairs his ability to understand speech.

Upon review of all lay and medical evidence, and after affording the Veteran the benefit of the doubt, the Board finds that the Veteran's impairment from multiple service-connected disabilities, and with consideration of his education, training, and experience, render it impossible for him to obtain or retain substantially gainful employment of some type based on his service-connected disabilities. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

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In sum the Board finds the relevant evidence to be nearly equal as to whether the service-connected disabilities precluded the Veteran from obtaining and retaining substantially gainful employment. When reasonable doubt is resolved in the appellant's favor, the Board finds that TDIU on a schedular basis is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.16.

 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Han, David

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.