Citation Nr: 1217299 Decision Date: 05/15/12 Archive Date: 05/24/12 DOCKET NO. 09-46 758A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an increased rating for service-connected hypertension, currently evaluated as 10 percent disabling. 3. Whether new and material evidence has been presented to reopen a claim for service connection for a lumbar spine disability. 4. Entitlement to service connection for fibromyalgia. 5. Entitlement to an increased rating for service-connected degenerative arthritis, cervical spine, with limitation of motion, currently evaluated as 30 percent disabling. 6. Entitlement to an increased rating for service-connected chondromalacia, right knee, with arthritis, currently evaluated as 10 percent disabling prior to March 1, 2013, and as 30 percent disabling thereafter. 7. Entitlement to an increased rating for service-connected chondromalacia, left knee, with arthritis, evaluated as 10 percent disabling prior to March 1, 2012, and as 30 percent disabling thereafter. 8. Entitlement to a total rating on the basis of individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1993. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2011, the Veteran and his representative presented evidence and testimony in support of his claims at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's VA claims folder. The issues of whether new and material evidence has been presented to reopen a claim for service connection for a lumbar spine disability, entitlement to service connection for fibromyalgia, entitlement to an increased rating for service-connected degenerative arthritis, cervical spine, with limitation of motion, currently evaluated as 30 percent disabling, entitlement to an increased rating for service-connected bilateral knee disabilities, and entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have tinnitus that was caused by his service. 2. The Veteran's service-connected hypertension is characterized by diastolic blood pressure predominantly less than 110, and systolic blood pressure predominantly less than 200. CONCLUSIONS OF LAW 1. Tinnitus is not related to active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). 2. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.104, 4.119, Diagnostic Code 7101 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran asserts that he is entitled to service connection for tinnitus. He asserts that he has this condition due to exposure to loud noise during service, primarily exposure to noise from tank engines and cannon fire, but also due to small arms fire, to include during duties as a drill instructor. In January 2006, the Veteran filed his claim for service connection for tinnitus. In April 2007, the RO denied the claim. The Veteran has appealed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). The Veteran's service treatment reports do not show any complaints or diagnoses of ringing in the ears/tinnitus. A separation examination report, dated in December 1993, shows that his ears and drums were clinically evaluated as normal. The post-service medical evidence consists of VA and non-VA reports, dated between 1996 and 2011, to include a VA examination report, dated in March 2007. VA progress notes contain "problem lists" noting tinnitus beginning in 2005. Private treatment reports show complaints of tinnitus beginning in 2007. A VA audiometric examination report, dated in March 2007, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran reported that during service he had performed duties involving tanks, communications and firearms, "some unprotected," and that following service he had been a deputy sheriff for 10 years, with some work as a juvenile drug and alcohol treatment worker. He denied recreational exposure. The report notes a five-year history of tinnitus "of unknown etiology." The examiner concluded that it is less likely as not that tinnitus is the result of acoustic trauma during service, explaining that the Veteran had reported that his tinnitus began 10 years after separation from service. As an initial matter, the Board has determined that the Veteran is not a credible historian. The Veteran has testified that he had tinnitus during service. However, the service treatment records do not show any relevant complaints or diagnoses. The post-service medical evidence shows that prior to filing his January 2006 claim, he repeatedly denied having any ear symptoms. See e.g., report from B.S.K., M.D., dated in August 1997; reports from J.R.W., M.D., dated in February, March, April and June of 2003, May 2005. In addition, at his March 12, 2007 VA examination, the Veteran gave a 5-year history of tinnitus. See also VA Form 10-2364 ("audiological evaluation"), dated 12, March 2007 (noting a 5-year history of tinnitus "of unknown etiology"). In summary, the Veteran's testimony as to the history of his tinnitus symptoms is shown to be so inconsistently reported, and uncorroborated and contradicted by the service treatment reports and the post-service medical records, that the Board finds that he is not a credible historian. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). The Board further finds that the claim must be denied. There is no evidence to show any relevant treatment during service, nor has the Veteran claimed that he was treated for tinnitus during service. In addition, the earliest medical evidence of tinnitus is dated in 2005. This is approximately 12 years after separation from service. Furthermore, the Board finds that the March 2007 opinion in the VA examination report is highly probative evidence against the claim. This report is shown to have been based on a review of the Veteran's C-file, and the examiner's conclusion is accompanied by a sufficient rationale. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. In reaching this decision, the Board has considered a statement from A.M.S., M.D., dated in June 2007, in which this physician states that the Veteran has tinnitus that "is very likely due to the noise exposure he has had in his life and certainly the military exposure is a big part of this." This opinion is not shown to have been based on a review of the Veteran's C-file, or any other detailed and reliable medical history, and it appears to be "by history" only. However, the Veteran has been found not to be credible. In addition, this opinion is unaccompanied by any sort of rationale, or citation to clinical findings during service, or thereafter. Neives-Rodriguez; see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006). It is therefore not afforded sufficient probative valued to warrant a grant of the claim. As a final matter, the Board has considered certain language in Training Letter 10-02, a copy of which the Veteran has submitted. The Training Letter states, "Tinnitus is a symptom that is associated with many conditions, including acute noise exposure and noise-induced hearing loss, and that sensorineural hearing loss is the most common cause of tinnitus. However, the etiology of tinnitus often cannot be identified, because there are so many potential causes that it is impossible to select one. In addition to sensorineural hearing loss, other known causes are Meniere's disease, head injury (including traumatic brain injury), otosclerosis, cerebrovascular disease, neoplasms, numerous types of ototoxic medications, hypertension, kidney disease, dental disorders, and many other medical conditions." The training letter also notes that delayed-onset tinnitus must also be considered. This Training Letter is merely an interpretative rule that lays out guidelines which serve to inform and educate adjudicators as to the possible causes of tinnitus, and they direct that the raters develop the record. See Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed.Cir.2001). It does not purport to establish any medical presumptions, nor is it considered to be substantive medical evidence. See e.g., Dyment v. West, 13 Vet. App. 141 (1999); Nolen v. West, 12 Vet. App. 347 (1999). The Board has considered the doctrine of reasonable doubt, however, as is stated above, the preponderance of the evidence is against the appellant's claim, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With regard to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The issue on appeal is based on the contention that tinnitus was caused by service that ended in 1993. However, the Veteran has been found not to be credible. When the Veteran's service treatment records (which do not show any relevant complaints, treatment, findings, or diagnoses), and his post-service medical records are considered (which do not show any relevant complaints prior to 2005, and which contain a competent and probative opinion against the claim), the Board finds that the service treatment reports, and the medical evidence, do not warrant a grant of the claim. II. Increased Rating - Hypertension The Veteran asserts that he is entitled to an increased rating for his service-connected hypertension. In June 1994, the RO granted service connection for hypertension, evaluated as 10 percent disabling. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2010). In January 2006, the Veteran filed his claims for an increased rating. In April 2007, the RO denied the claim. The Veteran has appealed. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Hypertension is evaluated under 38 C.F.R. § 4.104, DC 7101. Under DC 7101, a 10 percent evaluation is warranted for diastolic pressure predominantly 100 or more, or systolic pressure of 160 or more, or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or when systolic pressure is predominantly 200 or more. Id. The term "hypertension" means that the diastolic blood pressure is predominantly 90 millimeters (mm) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Id. [Note 1]. During the pendency of the appeal, the diagnostic code regarding hypertension was amended. 71 Fed. Reg. 52457-60 (Sept. 6, 2006). Effective October 6, 2006, a note was added after the rating criteria of DC 7101 concerning separate evaluations of hypertension and other heart diseases. Because the Veteran is not service connected for any other heart disease, the change to the regulation is inapplicable to the appeal at hand.) The relevant medical evidence for the time period in issue consists of VA and non-VA reports, dated between January 2005 and the present. See 38 C.F.R. § 3.400(o)(2) (2011). VA progress notes, and private treatment reports, show that the Veteran's blood pressure ranged between 107-158/64-96. A VA examination report, dated in March 2007, shows that the examiner stated that the Veteran's C-file had been reviewed. He was noted to be taking Lisinopril, and Atenolol. On examination, the Veteran's blood pressure was 134/89, 131/86, and 135/87. The diagnosis was "moderate hypertension." A statement from T.A.M., M.D., dated in October 2008, shows that the Veteran was hospitalized for about ten days in September 2008 for complaints of chest pain. He was noted to have labile hypertension. His blood pressure was noted to be 129/72. His medications were noted to include Atenolol and Lisinopril. His symptoms were noted to be "highly suggestive of anxiety." A VA examination report, dated in February 2009, shows that the examiner stated that the Veteran's C-file and medical records had been reviewed. The Veteran was noted to be taking Atenolol and Lisinopril. He reported that his blood pressure has been fairly well-controlled with his current medications. On examination, the Veteran's blood pressure was 130/80, 124/82, and 122/76. The diagnosis was "hypertension controlled with current medications." The Board finds that a rating in excess of 10 percent is not warranted for hypertension. The blood pressure readings do not show systolic pressure predominantly of 200 or more, or diastolic pressure predominantly of 110 or more. Given the foregoing, the Board finds that the preponderance of the medical evidence does not show that the Veteran predominantly has had diastolic pressure of 110 or more, or systolic pressure readings of 200 or more. Thus, because neither the Veteran's diastolic pressure readings, or systolic pressure readings, predominantly meet the schedular criteria for a 20 percent rating under DC 7101, a rating in excess of 10 percent is not warranted for hypertension. In deciding the Veteran's claim, the Board has considered the determination in Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased rating for separate periods based on the facts found during the appeal period. However, the Board does not find evidence that the Veteran's rating should be increased for any separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability in issue, such that an increased initial evaluation is warranted. III. VCAA The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in January 2006. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded examinations, and with regard to the claim for service connection, an etiological opinion has been obtained. To the extent that the Veteran has complained that his February 2009 hypertension examination was inadequate because it was performed by a physician's assistant, this is not a basis upon which to find that the examination is inadequate. See Cox v. Nicholson, 20 Vet. App. 563 (2007). This examination report shows that the examiner had reviewed the Veteran's C-file, that the Veteran's relevant medical history was recorded, that the Veteran was afforded a full examination, and it is accompanied by detailed findings. The Board therefore concludes that this examination report is adequate for purposes of rendering a decision. See 38 C.F.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In summary, it appears that all known and available service and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for tinnitus is denied. A rating in excess of 10 percent for hypertension is denied. REMAND With regard to the claim for whether new and material evidence has been presented to reopen a claim for service connection for a lumbar spine disability, and entitlement to service connection for fibromyalgia, the RO denied these claims in August 2010. In a statement (VA Form 21-4138), received in October 2010, the Veteran indicated that he disagreed with these denials of his claims. This statement satisfies the criteria for a timely notice of disagreement (NOD). See 38 C.F.R. §§ 20.201, 20.302 (2011). Because a timely NOD was filed to this aspect of the RO's August 2010 rating decision, the RO must now provide the Veteran with a statement of the case on the issues of whether new and material evidence has been presented to reopen a claim for service connection for a lumbar spine disability, and entitlement to service connection for fibromyalgia. See Manlincon v. West, 12 Vet. App. 238 (1999). With regard to the claims for increased ratings for the knees, the Veteran was last afforded a VA examination in August 2010. The medical evidence shows that in January 2011, he underwent a total knee replacement (TKR), left knee. In January 2012, he underwent a TKR of the right knee. At his hearing, held in November 2011, the Veteran stated that his knee symptoms had worsened. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95, 60 Fed. Reg. 43186 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). In this case, given the evidence of bilateral TKA's, and the Veteran's testimony, there is a possibility of increased symptomatology. Accordingly, on remand, the Veteran should be scheduled for a VA examination of his knees. Id. With regard to the issue of entitlement to an increased rating for service-connected degenerative arthritis, cervical spine, with limitation of motion, currently evaluated as 30 percent disabling, the Veteran was last afforded a VA examination of his cervical spine in August 2010. At his hearing, held in November 2011, the Veteran stated that his cervical spine symptoms had worsened. Accordingly, on remand, the Veteran should be scheduled for a VA examination of his cervical spine. Id. The appellant is hereby notified that it is the appellant's responsibility to report for the examination(s), and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination(s) without good cause may include denial of the claim(s). 38 C.F.R. §§ 3.158 and 3.655 (2011). Finally, in October 2010, the RO denied a claim for TDIU. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2010). The Veteran's November 2011 Travel Board hearing transcript shows that the Veteran apparently again raised a claim for a TDIU. This claim has not yet been adjudicated by the agency of original jurisdiction. However, in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) the Court stated that when the issue of entitlement to a TDIU rating 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 has jurisdiction to consider that issue. The Court indicated that if the Board determines that further action by the RO is necessary with respect to the issue, the Board should remand that issue. In this case, the Veteran has not yet been afforded VCAA notice with regard to his TDIU claim. In addition, the Veteran's increased rating claims for his knees, and cervical spine, are being remanded for additional development, to include an attempt to obtain medical evidence, and examinations, and the claim for TDIU is considered to be "inextricably intertwined" with these claims for increased ratings. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, adjudication of this claim must be deferred. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case with respect to the issues of whether new and material evidence has been presented to reopen a claim for service connection for a lumbar spine disability, and entitlement to service connection for fibromyalgia. The Veteran should be advised that he may perfect his appeal of these issues by filing a Substantive Appeal within 60 days of the issuance of the Statement of the Case. See 38 C.F.R. § 20.302(b). 2. Send the Veteran a VCAA notice letter with respect to the issue of entitlement to TDIU. 3. Request that the Veteran identify all private (non-VA) sources of treatment for his knees, and cervical spine, since January 2012, and all VA treatment since 2010. After obtaining all necessary authorizations, the RO/AMC should attempt to obtain these identified records and associate them with the Veteran's claims file. If the RO/AMC is unable to make contact with any of these physicians, or if no response is received from them within a reasonable amount of time, the RO/AMC should document such results in the claims file. 4. After the development outlined in the first three paragraphs of this remand has been completed, schedule the Veteran for VA examination(s) to determine the nature and extent of his service-connected bilateral knee disabilities, and his service-connected cervical spine disability. The claims folder must be made available to and be reviewed by the examiner(s) in conjunction with the examination(s), and the examiner(s) should indicate that the Veteran's files have been reviewed. For both knees, and the cervical spine, the examiner(s) should state whether there is any pain, weakened movement, excess fatigability or incoordination on movement, and whether there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner(s) is/are asked to describe whether pain significantly limits functional ability during flare-ups, or when the knees are used repeatedly. All limitation of function must be identified. 5. The RO/AMC should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report(s) of examination(s). If the requested report(s) do not include fully detailed descriptions of pathology and all test reports, specific studies or adequate responses to the specific opinions requested, the report(s) must be returned for corrective action. 38 C.F.R. § 4.2 (2011); see also Stegall v. West, 11 Vet. App. 268 (1998). 6. Readjudicate the increased rating issues, to include consideration of all evidence received after the most recent supplemental statement of the case (SSOC), and adjudicate the issue of entitlement to TDIU. If any of the determinations remains unfavorable to the appellant, he and his representative should be provided with a SSOC that addresses all relevant actions taken on the claim(s) for benefits, to include a summary of the evidence and applicable law and regulations considered. The appellant should be given an opportunity to respond to the SSOC. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs