Citation Nr: 1342830 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 09-35 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for bilateral hearing loss disability; and, if so, whether the claim should be granted. 2. Whether new and material evidence has been presented to reopen a claim for service connection for tinnitus; and, if so, whether the claim should be granted. 3. Entitlement to service connection for sleep apnea as secondary to service-connected posttraumatic stress disorder (PTSD) or, alternatively, secondary to service-connected Barrett's esophagus with gastroesophageal reflux disease (GERD). 4. Entitlement to an initial rating in excess of 10 percent for Barrett's esophagus with GERD. 5. Entitlement to a rating in excess of 50 percent for PTSD prior to February 9, 2012, and in excess of 70 percent thereafter. REPRESENTATION Appellant represented by: Michael J. Brown, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania that denied reopening the claims for service connection for bilateral hearing loss disability and tinnitus; granted service connection for PTSD with an evaluation of 30 percent, effective April 22, 2008; granted service connection for Barrett's esophagus with an evaluation of 10 percent, effective April 22, 2008; and denied service connection for sleep apnea. In subsequent rating decisions, the PTSD evaluation was increased to 50 percent disabling prior to February 9, 2012, and 70 percent thereafter. This did not satisfy the Veteran's appeal. In a June 2010 supplemental statement of the case, the claims for service connection for bilateral hearing loss disability and tinnitus were reopened, but continued to be denied on the merits. Given that the RO has adjudicated these claims on the merits, the Board may proceed to review not only the decision to reopen these previously denied claims of service connection, but the subsequent decisions to deny these claims on the merits. In October 2009 and October 2010, the Veteran testified at the RO before Decision Review Officers (DRO). Transcripts of the proceedings are of record. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to service connection for sleep apnea as secondary to service-connected PTSD or, alternatively, secondary to service-connected Barrett's esophagus with GERD is addressed in the Remand portion of this decision. FINDINGS OF FACT 1. An unappealed rating decision in April 2006 denied service connection for bilateral hearing loss disability and denied service connection for tinnitus. 2. Evidence received since the April 2006 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss disability and service connection for tinnitus. 3. The Veteran's diagnosed bilateral hearing loss disability has not been shown to be etiologically related to the Veteran's in-service acoustic trauma or to any other injury or illness incurred during active duty service. 4. The Veteran's diagnosed tinnitus has not been shown to be etiologically related to the Veteran's in-service acoustic trauma or to any other injury or illness incurred during active duty service. 5. The Veteran's Barrett's esophagus is characterized by dysphagia and complaints of some epigastric distress, pyrosis (heartburn), and reflux, but is not accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. 6. Prior to February 9, 2012, the Veteran's PTSD most closely approximated occupational and social impairment with deficiencies in most areas. 7. From February 9, 2012, PTSD most closely approximates occupational and social impairment with deficiencies in most areas than total deficiencies. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claims of entitlement to service connection for bilateral hearing loss disability and service connection for tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. A bilateral hearing loss disability was not incurred or aggravated by service, and bilateral sensorineural defective hearing may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013). 3. Tinnitus was not incurred or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013). 4. The criteria for an initial rating in excess of 10 percent for service-connected Barrett's esophagus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 3.321, 4.7, 4.20, 4.114, Diagnostic Code 7346 (2013). 5. The criteria for a disability rating of 70 percent, but no higher, for PTSD have been met or approximated prior to February 9, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). 6. The criteria for a disability rating in excess of 70 percent for PTSD have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims to Reopen As a preliminary matter, the Board notes that the evidence currently of record is sufficient to substantiate the Veteran's claim to reopen the claims for service connection for bilateral hearing loss and tinnitus. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2013). Legal Criteria Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis Initially, the Board notes that because the reopening of a claim is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits, the Board must determine this issue on its own. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Review of the file shows the RO denied service connection for bilateral hearing loss and tinnitus in an April 2006 rating decision, based on the determination that neither condition was occurred in or caused by service. The Veteran was notified of the April 2006 denial by letter but he did not appeal. The Veteran submitted the instant claim in April 2008. As stated above, the claim to reopen was denied by the rating decision on appeal. The evidence received since the April 2008 decision includes, in pertinent part, a private examination in March 2009 in which the Veteran reported not wearing hearing protection in service and that upon discharge from the military, he noted chronic tinnitus that had been present ever since. The private examiner indicated that the Veteran's hearing loss was related to service. The foregoing evidence is not cumulative or redundant of the evidence previously of record. Moreover, it is sufficient to raise a reasonable possibility of substantiating the claims. Accordingly, this evidence is new and material, and reopening of the bilateral hearing loss and tinnitus claims is in order. The Board will proceed to review the claims on the merits below. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A letter mailed to the Veteran in April 2008 notified him of the information and evidence needed to substantiate his claims. This letter notified the Veteran that a disability rating and an effective date are assigned if his disability is determined to be service-connected, and hence, was also consistent with the notice requirements provided under Dingess. This letter also notified the Veteran of the requirements to establish service connection on a secondary basis. Subsequently, the Veteran's claims were adjudicated. Thus, notice provided to the Veteran was legally sufficient and VA's duty to notify in this case has been satisfied. Concerning the claims for higher ratings, the Veteran's claims are deemed to have arisen from an appeal of the initial evaluation following the grant of service connection. The courts have held that once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. The Veteran's service treatment records, service personnel records, and identified and pertinent post service records have been associated with the claims file. Additionally, the Veteran was afforded VA examinations in response to his claims. After review of the Veteran's claims file, the VA examiners supplied VA with opinions which expressed conclusions concerning the etiology of the Veteran's claimed disabilities. Ultimately, the Board finds that the examinations, along with the other evidence of record, is fully adequate for the purposes of determining whether the Veteran's disabilities are etiologically related to his active duty service or other service-connected disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, the Veteran presented testimony in support of his claims before DROs. The provisions of 38 C.F.R. § 3.103(c) (2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the DRO hearings, the requirements set forth in Bryant were complied with. Additionally, the Veteran was offered an opportunity to ask questions regarding his claims. Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c) (2) (2013), nor have they identified any prejudice in the conducting of the hearings. The Board, therefore, concludes that it has fulfilled its duty under Bryant. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. General Service Connection Legal Criteria In order to establish service connection, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active military, naval or air service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disorder may also be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical evidence, or, in certain circumstances, lay evidence, of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). See also Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Consequently, the following discussion will be limited to the evidence the Board finds to be relevant. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). Analysis Claims - Bilateral Hearing Loss and Tinnitus In addition to the general service connection principles discussed above, service connection for hearing loss is not granted unless the claimed hearing loss is of a particular level of severity. For purposes of applying the laws administered by VA, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. If certain diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of a hearing loss during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this case, audiometric test results expressed in an April 2006 VA examination report show that the Veteran has been diagnosed with bilateral sensorineural hearing loss which meets the threshold severity under 38 C.F.R. § 3.385. The Veteran has also been diagnosed with tinnitus. Accordingly, the issues of the Veteran's entitlement to service connection for hearing loss and tinnitus turns upon the question of whether the Veteran's current bilateral hearing loss and tinnitus are etiologically related to in-service noise exposure or other injury or illness incurred during active duty service. The Veteran asserts that he is entitled to service connection for bilateral hearing loss and tinnitus as they are related to in-service acoustic trauma, to include exposure to daily firing of weapons in his position in the field artillery. The Board concedes that the described acoustic trauma is consistent with the Veteran's documented service in the field artillery. Even conceding that the Veteran was exposed to such acoustic trauma, however, the evidence in the record does not show that the Veteran's hearing loss and tinnitus are related to his in-service acoustic trauma. Service treatment records in the claims file do not reflect hearing loss, per VA regulations, or tinnitus in either ear during the Veteran's active duty service. The Veteran's March 1970 separation examination report reflects that a clinical examination of the ears at that time was normal. Moreover, hearing loss and "ear, nose, or throat trouble" was not subjectively reported by the Veteran in the attached report of medical history. The Board notes that private treatment records also show diagnoses of sensorineural hearing loss and tinnitus. As noted above, the Veteran was afforded a VA examination in April 2006 in which he reported in-service noise exposure in the field artillery with no hearing protection. The VA examiner noted review of the claims file and opined that the hearing loss was not caused as a result of noise exposure while in the military since the Veteran's hearing was normal upon discharge; his tinnitus was also not caused as a result of noise exposure while in the military since there was no mention of tinnitus in his military records, and he was uncertain of the onset of tinnitus. The Veteran submitted a lay "buddy" statement in April 2006, attesting to his complaints in service of ringing in his ears due to firing weapons. The Veteran also submitted a statement from his spouse in April 2006, attesting that upon his return from service, he could no longer hear as he did prior to leaving. A private treatment record by Dr. P.J.H. in March 2009 showed that the Veteran reported a long history of hearing loss and chronic tinnitus upon discharge from service. The private examiner diagnosed mild to severe sensorineural hearing loss in the left ear and mildly severe to profound hearing loss in the right ear. The examiner stated that with a reasonable degree of medical certainty the hearing loss, particularly in the high frequencies, was related to noise exposure from military service. A VA addendum was submitted in March 2010 in which the examiner opined that the Veteran's hearing loss was not caused as a result of noise exposure while in the military; his hearing was normal upon discharge and there was no evidence of hearing loss within a year of discharge. Significantly, the examiner explained further that there was no complaint of a hearing loss from the Veteran on his separation medical examination form as well. The VA examiner stated that it was more likely that Dr. P.J.H. (the private opinion) did not have access to the service medical records and therefore did not see the hearing test that was performed upon discharge that indicated hearing was within normal limits in both ears. The VA examiner also opined that tinnitus was not caused as a result of noise exposure while in the military. An essential duplicate of the report by Dr. P.J.H. in March 2009 was submitted in October 2010. As noted above, the Veteran testified before a DRO in October 2010 as to how his hearing loss and tinnitus were related to his artillery service. In view of the foregoing evidence, the Board finds that the Veteran is not entitled to service connection for a bilateral hearing loss disability and tinnitus. As discussed, the Veteran's service treatment records do not indicate tinnitus. Moreover, the VA examiner's opinion that tinnitus was not caused as a result of noise exposure while in the military is not rebutted by any other medical opinion in the record. Review of the record reflects conflicting medical opinions as to whether there is a relationship between the bilateral hearing loss and service. Supportive of the Veteran's claim for bilateral hearing loss is Dr. P.J.H.'s statement. Conversely, the VA examination report with medical opinion given during the examination and in a subsequent addendum based upon review of the Veteran's service treatment records and private medical records, including that prepared by Dr. P.J.H., state unequivocally that the Veteran's bilateral hearing loss is not related to his military service. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board is obligated to analyze the credibility and probative value of all evidence, account for the evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. Meyer v. Brown, 9 Vet. App. 425 (1996); Eddy v. Brown, 9 Vet. App. 52 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994); Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson, 2 Vet. App. at 618; Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). In this case, for reasons explained herein below, the Board finds that the opinion of VA medical examiner, that the Veteran's hearing loss was not caused as a result of noise exposure while in the military, is the most probative evidence on the question of medical nexus. Greater weight may be placed on one physician's than another's depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson, 7 Vet. App. 36, 40. Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this case, the VA examiner supported the respective opinions with clinical rationale. The VA examiner concluded that there was no relationship between the Veteran's bilateral hearing loss and tinnitus to service based upon the Veteran's service treatment records, an interview with the Veteran, and his medical examination. The private examiner did not indicate review of the claims file. The Board must accordingly find that the opinions of the VA medical examiner are more probative than the opinions of the private examiner because they had the benefit of review of the Veteran's entire treatment record and claims history. Further, the private examiner did not provide any clinical rationale for the conclusion that the Veteran's bilateral hearing loss was related to service. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In fact, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In forming the opinion that the Veteran's current bilateral hearing loss was not related to his period of service, the VA examiner did not limit the basis for the opinion to the fact that a bilateral hearing loss was not shown in service. Had this been the case, the adequacy of the opinion could be questioned since the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Significantly however, the examiner reasoned further that there was no complaint from the Veteran of a hearing loss on separation examination, and that there was no evidence of a hearing loss within a year of discharge. Certainly, the Veteran is competent to offer probative evidence as to the presence, quality, onset, and duration of his hearing loss and tinnitus. See Barr v. Nicholson, 21 Vet. App. 303, 308 -09 (2007) (holding that lay evidence is competent with regard to a disease or injury with "unique and readily identifiable features" that are "capable of lay observation."); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that a veteran is competent to report as to onset and symptoms of a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that a veteran is competent to report as to onset and symptoms of tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (holding that a veteran is competent to report as to the onset and symptoms of flatfoot). However, the Veteran's account has been contradictory. The Veteran has asserted that his hearing loss and tinnitus were the result of his in-service noise exposure in the field artillery. As noted above, the Veteran's March 1970 separation examination report reflects that a clinical examination of the ears at that time was normal. Moreover, hearing loss and "ear, nose, or throat trouble" was not subjectively reported by the Veteran in the attached report of medical history. Due to this inconsistency, the Board finds the Veteran's remarks to not be credible. Moreover, the Board notes that a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In this case, given that the evidence appears to suggest that some time elapsed between the Veteran's service and the onset of hearing loss and tinnitus, the issue of the etiology of the Veteran's hearing loss and tinnitus appears to present a complex medical question. The record in this case does not reflect that the Veteran, nor those who submitted lay statements to include his spouse and the lay "buddy" statement, has the medical training and expertise required to be competent to provide an opinion as to such complex medical issues. As such, the Board does not attach probative weight to the assertions of etiology for his hearing loss or tinnitus. As the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss and tinnitus, the claims must be denied. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). Claims for Increased Ratings General Increased Rating Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119 (1999). Analysis Claim - Barrett's Esophagus Service connection for Barrett's esophagus was granted in a January 2009 rating decision with an evaluation of 10 percent, effective April 22, 2008. The Veteran appealed the rating. There are no specific rating criteria for Barrett's esophagus with GERD. 38 C.F.R. Part 4. However, it is permissible to rate an unlisted condition under a closely related disease or injury in which not only the function affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2013). Thus, Barrett's esophagus with GERD may be rated as a hiatal hernia. A hiatal hernia may be assigned a maximum rating of 60 percent disabling where there are symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. A 30 percent rating may be assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. A 10 percent rating will be assigned where there are two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.14, Diagnostic Code 7346 (2013). The Veteran was afforded a VA examination in May 2008 in which he reported following a regular diet, occasionally had breakthroughs, no history of bleeding, stable weight, substernal burning, and would awaken at night with heaviness in his chest and water brash or acid in his mouth. Dr. W.W., M.D., submitted a statement in March 2009 that the Barrett's esophagus required specific maintenance and endoscopy to ensure that he did not develop dysplasia, requiring continuous proton pump inhibitors to allow him to remain asymptomatic. The Veteran was afforded a VA examination in March 2009 in which he reported dysphagia for solids but not liquids, pain in his lower esophagus when drinking very cold liquids, complained of pyrosis in the epigastric region but no other substernal or arm pain, denied melena or hematemesis but had some regurgitation of acid or food, denied nausea or vomiting. The VA examiner noted stable weight and no signs of anemia. The Veteran was afforded a VA examination in January 2010 in which he reported dysphagia for solids and liquids a few times weekly, heartburn over his epigastric area without reaction to his arm two to three times per week, denied hematemesis or melena, and denied nausea or vomiting. The Veteran was afforded a VA examination in February 2012 in which he reported flare-ups of his condition with consumption of spicy foods, tomato sauce, and fatty foods. The Veteran denied symptoms of heartburn, denied dysphagia to solids and liquids, denied hematemesis or melena, denied nausea and vomiting, and reported that he got regurgitation of the acid contents from this stomach to his mouth almost daily. The examiner stated there was no evidence of anemia, and the Veteran did not appear malnourished. As noted above, the Veteran testified before a DRO in October 2010 as to how his stomach problems caused daily pain and trouble swallowing. The current 10 percent rating is assigned where there are two or more of the symptoms required for the 30 percent rating but of less severity. The symptoms required for the 30 percent rating are: persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. In this case, the Veteran has reported epigastric distress, pyrosis (heartburn), and regurgitation, as well as sleep disturbance. As a lay witness, the Veteran is competent to report what he experiences. 38 C.F.R. § 3.159(a) (2013). Moreover, the symptoms he describes are consistent with the endoscopic finding of Barrett's esophagus. So, the Board finds the Veteran's description of his symptoms to be credible. However, those symptoms, as described by the Veteran, do not exceed the criteria for a 10 percent rating. They do not approximate the criteria for a higher rating. Specifically, the evidence does not show that the Veteran's symptoms are accompanied by substernal or arm or shoulder pain and productive of considerable impairment of health, necessary criteria for the next higher rating of 30 percent. Similarly, the evidence does not show symptoms of pain, vomiting, material weight loss, hematemesis, melena, moderate anemia, or other symptom combinations productive of severe impairment of health as required for a 60 percent rating. The Veteran's statements as to the severity of his symptoms have been considered. However, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. The Board has considered the issues raised by Fenderson, 12 Vet. App. 119, and whether staged ratings should be assigned. Review of the record, as discussed in detail above, shows that the Barrett's esophagus with GERD has not significantly changed and uniform rating is appropriate in this case. At no time during the processing of the claim has the disability exceeded the criteria for a 10 percent rating. Claim - PTSD Psychiatric disabilities other than eating disorders are actually rated pursuant to the criteria of a General Rating Formula. See 38 C.F.R. § 4.130 (2012). Under the formula, a 10 percent rating is assigned when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2013). As noted above, the Veteran's PTSD is rated as 50 percent disabling prior to February 9, 2012, and 70 percent thereafter. The Veteran submitted a private examination in June 2008 in which he reported leaving his job due to stress, being socially withdrawn, and having difficulty taking orders. The examiner noted anxious mood, appropriate dress, and appearance of good hygiene. The Veteran reported symptoms to include unpredictable and aggressive behavior, depression, withdraw from close relationships, frequent flashbacks, periods of thought confusion, sleep disturbances, nightmares, and suicidal thoughts with no plans. The examiner diagnosed PTSD with a Global Assessment of Functioning (GAF) score of 41. (The Board notes that the Veteran submitted what appeared to be duplicates of this report in June 2009 and October 2010 that showed GAF scores of 40 and 39, respectively.) The Veteran was afforded a VA examination in December 2008 in which he reported symptoms to include night sweating, restless sleeping, flashbacks, avoidance, increased arousal, insomnia, irritability, hypervigilance, the habit of rechecking his home for security on multiple occasions, and exaggerated startle response. The Veteran reported going to dinner on regular occasions with his wife, maintaining close contact with his relatives, and following his hobby of watching sports. The examiner noted normal speech; orientation to time, person, and place; normal memory; normal cognitive functions; depressed mood; sad affect; no history of inappropriate behavior; and thoughts of suicide without planning or attempts. The examiner diagnosed PTSD with a GAF of 52. As noted above, the Veteran testified before a DRO in October 2009 as to his PTSD symptoms to include problems with many people at work, that his wife was afraid to talk to him, and that his children would visit when he was not at home. He generally stated that he had suicidal ideation, sleep disturbances, and isolation. The Veteran was afforded a VA examination in January 2010 in which he reported moving to a part-time status at his job due to PTSD symptoms, that his PTSD symptoms affected his social life as he avoided friends due to irritability and difficulties with trust and hypervigilance, that he had no close friends, and spent most of his time alone. The Veteran reported sleep disturbances, nightmares, daily flashbacks, avoidance, isolation, irritability, anger, moderate impairment with thought process and communication, problems with attention and concentration, difficulties with memory (forgetting details of recent conversation and the names of people he met recently). The examiner noted that the Veteran was fully oriented, denied any history of auditory or visual hallucination, was hygienic, thought process was logical, mood was flat, affect was anxious, suicidal ideation was acknowledged with no plan, and homicidal thoughts was denied. The VA examiner diagnosed PTSD and assigned a GAF score of 48. The Veteran submitted a notice of disagreement in July 2010 in which he stated that his working condition was poor, he received notices of deficiencies from his company supervisors as a result of his inability to concentration and complete assigned tasks. The Veteran stated that he was unable to continue to work on a regular meaningful basis and that although he was noted to be coherent and presented a neat appearance, he did not. The claims file is also replete with VA treatment records showing PTSD treatment. As noted above, the Veteran testified before a DRO in October 2010 as to how his PTSD caused problems with his job (due to poor concentration and memory problems), episodes of outbursts of anger, flashbacks, intrusive dreams, perimeter checks, avoidance of crowds, and lack of a social life. The Veteran was afforded a VA examination in February 2012 in which the examiner noted that he was neatly dressed and well groomed; was oriented to time, place, and person; behavior was appropriate; content of his responses was depressive to mildly angry in tone; mood appeared depressed; affect was constricted; thought processes were logical and goal-directed; and judgment appeared intact. The Veteran reported that he lost his job due to PTSD symptoms, separated from his wife, had strained relationship with his children, and inadequate social support. The Veteran reported symptoms to include recurrent and distressing recollection and dreams, avoidance, diminished interest in significant activities, feelings of detachment or estrangement from others, restricted affect, sleep disturbances, irritability or outbursts of anger, difficulty with concentration, hypervigilance, depressed mood, anxiety, suspiciousness, mild memory loss (forgetting names, directions, or recent events), difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and impaired impulse control such as unprovoked irritability with periods of violence. The VA examiner diagnosed PTSD and assigned a GAF score of 40. The examiner stated that there was occupational and social impairment with deficiencies in most areas. Based on the findings in the February 2012 VA examination, the evaluation for PTSD was increased from 50 percent to 70 percent, effective February 9, 2012. Considering the evidence, the Board finds that, with resolution of all reasonable doubt in the Veteran's favor, the evidence reflects that Veteran's psychiatric symptoms warrant a 70 percent, but no higher, rating for PTSD prior to February 9, 2012, but no higher. The Board finds that, collectively, the Veteran's psychiatric symptoms have primarily consisted of suicidal ideation, some obsessional rituals such as security checks of his home, impaired impulse control with unprovoked irritability, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. As such symptoms suggest occupational and social impairment with deficiencies in most areas, the Veteran's disability picture during the time frame prior to February 9, 2012, is consistent with a 70 percent rating. The Board notes, however, that at no point pertinent to the current claim for increase has the Veteran's PTSD met the criteria for at least the next higher, 100 percent, rating. The objective medical evidence does not reflect such symptoms as a gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting self or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), a disorientation to time or place, or a memory loss for names of close relatives, own occupation, or own name, that are characteristic of the 100 percent rating pursuant to VA's rating schedule. The evidence of record does not reflect a total occupational and social impairment, and without total occupational and social impairment, a 100 percent evaluation is not warranted. As noted above, the Board acknowledges that a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan, 16 Vet. App. at 442; however, as the Court held in Mauerhan, without the examples noted in the rating criteria, differentiating a 50 percent evaluation from a 70 percent evaluation would be extremely ambiguous. By extension to the present case, without the examples, differentiating the 70 and 100 percent ratings would be equally ambiguous. The Board is to consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate equivalent rating should be assigned. Id. In this case, however, the Board concludes that the Veteran's PTSD symptoms do not cause total occupational and social impairment as contemplated for a 100 percent rating. The Board notes that throughout the period of appeal, VA examiners and private examiners have assigned the Veteran GAF scores ranging from 39 to 52. These scores are indicative of serious symptoms and serious impairment in social and occupational functioning, and thus are representative of the criteria for a 70 percent, and no higher, rating. As a lay witness, the Veteran is competent to report what he experiences. 38 C.F.R. § 3.159(a) (2013). Moreover, the symptoms he describes are consistent with the finding of PTSD. So, the Board finds the Veteran's description of his symptoms to be credible. The Veteran's statements as to the severity of his symptoms have been considered. However, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals. See Cartright, 2 Vet. App. 24, 25. Other Considerations The Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b) (1) (2013). The Board finds that the preponderance of medical evidence shows that the service-connected Barrett's esophagus and PTSD manifestations are adequately compensated by the rating schedule. The evidence does not present such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. Specifically, the rating criteria encompass the symptoms reported by the Veteran. They simply are not so severe that they result in the considerable impairment of health that would support disability ratings higher than those assigned. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Further, the mere assertion or evidence that a disability interferes with employment would not necessarily require extraschedular consideration. The rating schedule is itself based upon the average impairment of earning capacity due to diseases, and application of the schedule clearly recognizes that the rated disabilities interfere with employment. 38 U.S.C. § 1155. Accordingly, the fact that a disability interferes with employment generally would not constitute an "exceptional or unusual" circumstance rendering application of the rating schedule impractical. Lastly, the Board notes that the Veteran's claim for total disability based on individual unemployability (TDIU) has been granted. As such, a claim for TDIU will not be discussed in this decision. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER The Board having determined that new and material evidence has been received, reopening of the claims of entitlement to service connection for bilateral hearing loss and tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to an initial rating in excess of 10 percent for Barrett's esophagus with GERD is denied. An increased rating of 70 percent prior to February 9, 2012, but no higher, for PTSD is granted, subject to the law and regulations governing the payment of VA compensation benefits. Entitlement to a rating in excess of 70 percent for PTSD from February 9, 2012, is denied. REMAND Claim - Sleep Apnea The Veteran claims that his sleep apnea is related to his service-connected Barrett's esophagus or, alternatively, is related to his service-connected PTSD. Service connection is warranted for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). In relevant part to this remand, the Board notes that the Veteran was afforded a VA examination in January 2010 in which the VA examiner opined that sleep apnea was not caused by or a result of PTSD. The examiner stated that review of medical literature did not reveal any definitive relationship between sleep apnea and PTSD. The Veteran was also afforded a VA examination in February 2012 in which the VA examiner stated that mild obstructive sleep apnea was not caused by or a result of mild GERD and mild Barrett esophagus as there was no evidence-based medical literature that stated that mild obstructive sleep apnea was caused by or a result of Barrett esophagus with GERD. However, the VA examiners did not offer opinions as to whether the claimed sleep apnea was chronically worsened, or aggravated, by the Veteran's service-connected Barrett's esophagus with GERD or his service-connected PTSD. Under the circumstances, further VA examination is appropriate to obtain the opinions as to aggravation. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran a VA examination(s) in order to determine the nature and etiology of the diagnosed sleep apnea. The claims file and a separate copy of this remand must be provided to the examiner(s) for review. The examiner(s) should note in the examination report that he or she has reviewed the claims folder. Based on the examination and review of the record, the examiner(s) should express opinions as to whether it is at least as likely as not (a 50 percent or greater probability) that any sleep apnea disability, is proximately due to, or aggravated by, the service-connected Barrett's esophagus with GERD or PTSD. The term "aggravation" means a permanent worsening beyond the natural progression of the disability. A complete rationale must be given for any opinion expressed. If the examiner(s) cannot respond without resorting to speculation, he should explain why a response would be speculative. 2. Thereafter, readjudicate the issue on appeal. If the desired benefit is not granted, a supplemental statement of the case should be furnished to the Veteran and his representative. The appropriate time within which to respond should also be afforded to the Veteran. The case should then be returned to the Board, if otherwise in order. 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs