Citation Nr: 1319734 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-35 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder. 2. Entitlement to service connection for a heart disorder, including cardiomyopathy and congestive heart failure. 3. Entitlement to service connection for a right shoulder disorder. 4. Entitlement to service connection for a left shoulder disorder. 5. Entitlement to service connection for a low back disorder. 6. Entitlement to service connection for a right knee disorder. 7. Entitlement to service connection for a left knee disorder. 8. Entitlement to service connection for migraine headaches, to include as secondary to tinnitus. 9. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 10. Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss prior to March 16, 2012. 11. Entitlement to an initial rating in excess of 30 percent for bilateral hearing loss on or after March 16, 2012. 12. Entitlement to an initial rating in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and M.J. ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from February 1961 to April 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In the February 2009 rating decision, the RO granted service connection for bilateral hearing loss and assigned a 20 percent disability rating effective from August 22, 2008. In a May 2012 rating decision, the RO assigned an increased rating of 30 percent effective from March 16, 2012. Nevertheless, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law is sought. As such, a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, this has been recharacterized as the two issues set forth above and remains on appeal. In April 2013, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims file. A review of the Veteran's Virtual VA claims file reveals that it contains documents that have not been associated with the paper claims file. However, the Board notes that the RO reviewed that evidence prior to its last adjudication of the claims. Therefore, there is no prejudice in the Board considering such evidence. The issues of entitlement to service connection for hypertension, right and left shoulder disorders, a low back disorder, right and left knee disorders, an acquired psychiatric disorder, and migraine headaches 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. A heart disorder did not manifest during the Veteran's military service and is not otherwise related thereto, nor did arteriosclerosis or endocarditis manifest within one year of his separation from active service. 2. Prior to March 16, 2012, the Veteran manifested, at worst, Level V hearing in his right ear and Level VI hearing in his left ear. 3. Since March 16, 2012, the Veteran has manifested, at worst, Level VI hearing in his right ear and Level VI in his left ear. 4. The Veteran is already in receipt of a 10 percent disability rating for his tinnitus, which is the maximum schedular rating under the applicable rating criteria. CONCLUSIONS OF LAW 1. A heart disorder, to include cardiomyopathy and congestive heart failure, was not incurred in active service, and arteriosclerosis and endocarditis are not presumed to have been so incurred. 38 U.S.C.A. §§ 101(21), (24), 1101, 1110, 1112, 1113, 1137, 1154 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for an initial rating in excess of 20 percent for bilateral hearing loss prior to March 16, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012). 3. The criteria for an initial rating in excess of 30 percent for bilateral hearing loss on or after March 16, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012). 4. There is no legal basis for the assignment of a rating in excess of 10 percent for tinnitus. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2012); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, fully compliant notice with regard to the Veteran's service connection claim was provided in September 2008, which was prior to the February 2009 initial adjudication of the Veteran's claim. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Nevertheless, the Veteran in this case is challenging the initial evaluations assigned following the grant of service connection for his bilateral hearing loss and tinnitus. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issues on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. The Veteran has not identified any outstanding records that are available and relevant to the claim being decided herein. Moreover, the record includes various written statements provided by the Veteran and his representative, as well as a transcript of the Veteran's April 2013 Board hearing. While the Veteran reported being in receipt of Social Security Administration disability benefits, and evidence contained in the record shows that he was found disabled in 1965, the Social Security Administration informed the RO that these records had been destroyed. In a December 2008 letter, the RO informed the Veteran of this fact and asked him to submit his Social Security records if he had them. The Veteran did not respond to this request. Therefore, the Board finds that any additional attempt to obtain these records would be futile, and the duty to assist has been met with regard to these records. In addition, the Veteran was afforded VA examinations in December 2008 and March 2012 in connection with his bilateral hearing loss. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on an examination, and fully address the rating criteria that are relevant to rating the disability in this case. In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. In this case, the December 2008 and March 2012 VA examiners did address the effect of the appellant's hearing problems on his occupation and daily life. In particular, the December 2008 VA examiner noted that, in his usual occupation, the Veteran had difficulty understanding over the phone and hearing verbal commands in his work environment. In his daily activities, he had a decreased ability to hear or understand the telephone, television, and conversations. Similarly, the March 2012 VA examiner indicated that the Veteran had difficulty understanding conversational speech and speech in the presence of background noise. However, the examiner also remarked that the Veteran's hearing loss did not impact the ordinary conditions of daily life, including the ability to work. Moreover, in Martinak, the Court noted that even if an audiologist's description of the functional effects of the appellant's hearing disability was somehow defective, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination. There have been no allegations of any prejudice caused by a deficiency in the examinations here. Indeed, the Veteran has been represented throughout the course of the appeal, yet the documents submitted do not contain any such assertion. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination as to the Veteran's bilateral hearing loss. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board does acknowledge that the Veteran has not been afforded a VA examination in connection with his claim for service connection for a heart disorder. Under the law, an examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and, (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service- connected disability. 38 C.F.R. § 3.159(c)(4). In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, a VA examination is unnecessary to decide the claim for service connection for a heart disorder because such an examination would not provide any more pertinent information than is already associated with the claims file. As will be explained below, the Veteran has not been shown to have had a disease, event, or injury during his active military service. His service treatment records are entirely negative, and in the decision below, the Board finds that his reported history to be not credible. The record contains no probative evidence that demonstrates otherwise. Therefore, because there is no event, injury, or disease in service to which a current disorder could be related, the Board finds that a VA examination is unnecessary. 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an inservice event, injury, or disease). Moreover, as previously noted, the Veteran was also afforded an opportunity to present testimony at a hearing before the Board in April 2013. In Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). In this case, the undersigned Veterans Law Judge (VLJ) set forth the issues to be discussed and sought to identify pertinent evidence not currently associated with the claims folder. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arteriosclerosis and endocarditis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. For arteriosclerosis and endocarditis, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a heart disorder. In fact, his January 1961 entrance examination and his March 1965 separation examination both found his heart to be normal. Moreover, at the latter examination, the Veteran denied a having history of pain or pressure in his chest as well as pounding heart symptoms. In his August 2008 claim, the Veteran contended that his claimed disorder began in 1964. An April 2008 VA report of an EKG shows an impression that findings were consistent with ischemic heart disease with left ventricular dysfunction. Findings were also suggestive of cardiomyopathy. In addition, an August 2008 VA outpatient record contains a prior diagnosis of congestive heart failure, and an August 2010 VA outpatient treatment record indicates a diagnosis of non-obstructive coronary artery disease. The Board will first consider the applicability of 38 C.F.R. § 3.303(b) to the Veteran's claim of entitlement to service connection for his disability, to the extent that he has been found to have arteriosclerosis and endocarditis. Neither arteriosclerosis and endocarditis, nor manifestations sufficient to identify either disease entity, are shown during service. Rather, all examinations of the Veteran's heart during service were normal, and the Veteran denied having any associated symptomatology during that time period. Therefore, while the current diagnoses of coronary artery disease, ischemic heart disease, and left ventricular dysfunction may be chronic diseases under 38 C.F.R. § 3.309(a), no notations of these diseases or any characteristic manifestations were noted in the service records. Diagnoses of any of these diseases were not noted until 2008, which is more than one year following the Veteran's separation from active service. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and arteriosclerosis and endocarditis may not be presumed to have been incurred in service. 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.307, 3.309. With regard to entitlement to service connection under the provisions of 38 C.F.R. § 3.303(a), there is no opinion of record that links the Veteran's current diagnoses with his military service. While the Veteran initially noted in his claim that all of his claimed disorders began in 1964, he later testified during his April 2013 hearing that his heart disorders were not diagnosed until 2008, and he provided no opinion as to their relationship to his service. To the extent that the Veteran may have implied that his disorders had their onset during service in 1964, the Board finds the reported history to be not credible. In this regard, there is affirmative evidence showing that his heart was normal in service and that he actually denied having any symptomatology pertaining to his heart. Moreover, as noted above, he has provided inconsistent statements regarding the onset of the disorders. In his claim, he stated that his heart disorder began in 1964, but during his hearing, he indicated that the disorder began in 2008. Finally, while the Veteran suggested that his hypertension may be secondary to his acquired psychiatric disorder, which is being remanded below, he made no such similar assertion regarding his cardiomyopathy, congestive heart failure, left ventricular dysfunction, coronary artery disease, or ischemic heart disease. In short, there is no credible lay or medical evidence relating any of the Veteran's currently diagnosed heart disorders to service. Based on the foregoing, the Board finds that the Veteran's heart disorder is not causally or etiologically related to his military service. Accordingly, the claim for service connection for a heart disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, based on these facts, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Increased Ratings 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Bilateral Hearing Loss The Veteran's bilateral hearing loss is currently assigned a 20 percent rating prior to March 16, 2012, and a 30 percent rating thereafter, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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). The provisions of 38 C.F.R. § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to increased ratings for his bilateral hearing loss, either before or after March 16, 2012. In this regard, a December 2008 VA examination audiogram revealed pure tone thresholds, in decibels, as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 55 65 75 75 Left 55 65 75 85 Speech recognition testing indicated a score of 78 percent in the right ear and 70 percent in the left ear. The diagnosis was moderate to profound sensorineural hearing loss, bilaterally. A February 2010 VA outpatient treatment record shows that the Veteran underwent audiological evaluation. Pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 55 65 80 80 Left 55 65 75 90 The diagnosis was mild sloping to severe sensorineural hearing loss. Word recognition testing was completed, but it is unclear whether it was the Maryland CNC Word Test. A March 2012 VA examination report included an audiogram, which revealed pure tone thresholds, in decibels, as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 55 65 80 80 Left 55 70 75 90 Speech recognition testing indicated a score of 68 percent in the right ear and 64 percent in the left ear. The diagnosis was moderate to profound sensorineural hearing loss in each ear. The examiner reported that the Veteran's hearing loss did not impact the ordinary conditions of daily life, including his ability to work. During his April 2013 Board hearing, the Veteran testified that he needed to look at a person while talking to them to help him understand. He had difficulty hearing background noises and high voices. A review of the audiological testing of record reveals that the disability is not severe enough to warrant a rating higher than 20 percent prior to March 16, 2012, or a 30 percent rating thereafter. Pursuant to the December 2008 VA examination report, the Veteran's right ear speech recognition score of 78 percent, when combined with the average decibel loss of 68, results in a numeric value of IV. The Veteran's left ear speech recognition score of 70, when combined with the average decibel loss of 70, results in a numeric value of VI. Because the Veteran's test results qualify as an exceptional pattern of hearing, the Board will also consider his disability under Table VIA. Under that table, a numeric value of V in the right ear and VI in the left ear is assigned. Because this results in higher values, the Board will then evaluate these numbers via Table VII. Under those criteria, the Veteran's hearing results in a 20 percent rating. While the Veteran's hearing was tested in February 2010, it is not clear whether the Maryland CNC test was conducted. Moreover, the Board finds that the results shown on this test are largely similar to and consistent with the examinations conducted prior to that date and do not suggest that an additional examination was warranted. Pursuant to the March 2012 VA examination report, the Veteran's right ear speech recognition score of 68 percent, when combined with the average decibel loss of 70, results in a numeric value of VI. The Veteran's left ear speech recognition score of 64, when combined with the average decibel loss of 73, results in a numeric value of VII. Because the Veteran's test results qualify as an exceptional pattern of hearing, the Board will also consider his disability under Table VIA. Under that table, a numeric value of VI in the right ear and VI in the left ear is assigned. Because this results in higher values, the Board will then evaluate these numbers via Table VII. Under those criteria, the Veteran's hearing results in a 30 percent rating. 38 C.F.R. §§ 4.85, 4.86. The schedular criteria are specific, and the Veteran's bilateral hearing loss is simply not of sufficient severity to warrant ratings in excess of those already assigned. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Based on the foregoing, the preponderance of the evidence is against the assignment of an initial rating in excess of 20 percent prior to March 16, 2012, and a 30 percent rating thereafter. The already assigned staged ratings, therefore, are appropriate in this case. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's bilateral hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id. see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. The Veteran's exceptional pattern of hearing impairment has already been considered in the ratings assigned. Furthermore, the complaints put forth by the Veteran during his Board hearing with regard to having difficulty with background noise and certain voices, are contemplated in the rating already assigned, and the VA examiner indicated that his hearing loss did not affect his daily life. As such, it cannot be said that the available schedular evaluation for the disability is inadequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected bilateral hearing loss under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 33 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). Tinnitus The Veteran seeks an evaluation in excess of 10 percent for recurrent tinnitus. Tinnitus is evaluated under 38 C.F.R. § 4.87, Diagnostic Code 6260, which provides for a 10 percent rating. Note 2 to Diagnostic Code 6260 specifically provides that only a single evaluation is to be assigned, whether the sound is perceived as being in one ear, both ears, or in the head. See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As the current version of Diagnostic Code 6260 specifically prohibits a schedular evaluation in excess of a single 10 percent rating for tinnitus, however perceived, an evaluation in excess of 10 percent for recurrent tinnitus is not warranted as a matter of law in this case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). ORDER Service connection for a heart disorder, including cardiomyopathy and congestive heart failure, is denied. An initial rating in excess of 20 percent for bilateral hearing loss prior to March 16, 2012, is denied. An initial rating in excess of 30 percent for bilateral hearing loss on or after March 16, 2012, is denied. An initial rating in excess of 10 percent for tinnitus is denied. REMAND The Board finds that further development is necessary prior to final adjudication of the claims remaining on appeal. During the April 2013 Board hearing, the Veteran's wife testified that he had undergone an x-ray examination of his shoulder three months earlier. As these records are not associated with the claims file, the Board finds that they should be requested and associated with the claims file prior to adjudication of those claims. Additionally, during the April 2013 Board hearing, the Veteran testified that he was pushed into a foxhole during service, thereby injuring his shoulders, back, and knees and causing the onset of his headaches to onset. In light of this testimony and the evidence of current problems with his shoulders, back, knees, and headaches, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of the claimed disorders. While the Veteran was previously afforded a VA examination regarding his headaches in February 2012, the examiner did not take into account or consider this testimony. With regard to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, including PTSD, the Board finds that a remand for an examination and opinion is also necessary. The Veteran submitted two stressor statements alleging that, while he was serving in the demilitarized zone in Korea from June 1963 to July 1964, he was subjected to incoming fire from North Korea. Numerous VA outpatient records show that the Veteran has complained of recurrent nightmares of his time in Korea, and his wife testified as to the presence of these nightmares during the April 2013 Board hearing. The Board finds that the Veteran's reported stressor involves the threat of hostile military or terrorist activity and is consistent with the nature and circumstances of his service. 38 C.F.R. § 3.304(f). Therefore, a remand is necessary to afford him an examination to determine whether he has a current psychiatric disorder related to his military service. Finally, the Board notes that a decision on the claim for service connection for a psychiatric disorder could change the outcome of the Veteran's claim for service connection for hypertension. In this regard, the Board observes that the Veteran contended at his April 2013 hearing that the latter disorder is secondary to his psychiatric disorder. As such, the claims are inextricably intertwined. For this reason, the issue of service connection for an acquired psychiatric disorder must be resolved prior to resolution of the claim for service connection for hypertension. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the RO/AMC to adjudicate the inextricably intertwined issue. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any outstanding treatment records from the VA Medical Center in Oklahoma City, Oklahoma dated since May 2012. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. After securing VA treatment records and any other additional evidence, the RO/AMC should schedule the Veteran for a VA examination to determine the nature and etiology of any current right and left shoulder disorder, right and left knee disorders, low back disorder, and headaches that may be present. The Veteran should be advised that failure to report for a scheduled VA examination without good cause shown may have adverse consequences for his claim. The examination should include any diagnostic testing or evaluation deemed necessary. The claims folder should be made available for review for the examination, and the examination report must state whether such review was accomplished. The examiner should offer a clear rationale for any opinion provided. The examiner should identify all current diagnoses of right and left shoulder disorders, right and left knee disorders, low back disorder, and headaches that are present. For each diagnosis identified, the examiner should state whether it is it at least as likely as not (i.e., 50 percent or more probable) that the disorder is related to the Veteran's military service. In rendering this opinion, the examiner is to consider the Veteran's report of having fallen in a hole and injuring himself during service in Korea. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as against it.) 3. The RO should schedule the Veteran for a VA psychiatric examination. The claims folder must be available for review by the examiner. Additionally, all relevant medical records should be made available to the examiner for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. If the Veteran is diagnosed with PTSD, the examiner is requested to state: (1) whether the diagnosis is at least as likely as not related to the Veteran's report of having been fired upon by the North Koreans while serving in the demilitarized zone; and (2) whether this reported in-service stressor is adequate to support the diagnosis of PTSD. If the Veteran is diagnosed with an acquired psychiatric disorder other than PTSD, the examiner is requested to opine whether it is at least as likely as not that the disorder is related to the Veteran's active military service or events therein. If any acquired psychiatric disorder is found to be related to service, the examiner is asked to opine as to whether it is at least as likely as not that the Veteran's hypertension was aggravated by this psychiatric disorder. A complete rationale for any opinions expressed must be provided. 4. The RO/AMC should then review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action should be implemented. If any report does not include adequate responses to the specific opinions requested, it should be returned to the examiner for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Thereafter, the RO/AMC should consider all of the evidence of record, and readjudicate the issues remaining on appeal. If the benefits sought are not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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. 2012). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs