Citation Nr: 1527349	
Decision Date: 06/26/15    Archive Date: 07/07/15

DOCKET NO.  10-43 092	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to an effective date earlier than July 15, 2008, for service connection for migraine headaches.

2.  Whether there is clear and unmistakable error (CUE) in the January 2003 rating decision denying service connection for migraine headaches.

3.  Entitlement to a disability rating in excess of 30 percent prior to October 14, 2011, for service-connected migraine headaches.

4.  Entitlement to an initial disability rating in excess of 10 percent for service-connected dysthymic disorder.

5.  Entitlement to a compensable disability rating for service-connected perforated tympanic membranes.

6.  Entitlement to service connection for dermatitis as secondary to service connected disabilities.

7.  Entitlement to service connection for a personality disorder with obsessive compulsive traits, to include as secondary to service-connected disabilities.

8.  Entitlement to service connection for chronic obstructive pulmonary disease (COPD) also claimed as emphysema, tobacco disorder, and nicotine dependence.

9.  Entitlement to service connection for leukoplakia (also claimed as gingivitis) as secondary to nicotine dependence.

10.  Entitlement to service connection for a sleep disorder including as secondary to service-connected disabilities.

11.  Entitlement to a total disability rating based on individual unemployability (TDIU).

12.  Entitlement to a disability rating in excess of 30 percent for service-connected bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

K. Hubers, Associate Counsel


INTRODUCTION

The Veteran had active service from November 1974 to October 1976.  This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 

In March 2015, the Veteran testified via videoconference in a hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

There is a motion pending to advance this case on the Board's docket.  It is not necessary to rule on that motion, however, since all issues on appeal at this time are being decided in full.  There would be no further advantage gained by advancing the case on the docket. 

Evidence has been received subsequent to the final consideration of the claim by the RO.  However, the Veteran provided a March 2015 waiver of RO consideration of that evidence; the Board may consider the appeal.  While the waiver precedes April and May 2015 submissions (the latter received by VA in June 2015) from the Veteran, those submissions contain argument which requires no waiver and attachments of evidence already of record that have been highlighted or marked to support the argument.  The May 2015 submission attaches a Board decision in another Veteran's case.  Such decisions are non-precedential and are not evidence in this matter.  The Board has considered the May 2015 arguments made by the Veteran based on that decision and explains below its findings and conclusions with respect to the disputed report.  Because the April and May 2015 submissions, to the extent they contain evidence rather than argument, are duplicates of evidence already of record and considered by the RO, no waiver is required. 

The Board has expanded the issues to include an additional claim (Issue # 12).  During the pendency of this appeal, the RO issued a November 2014 rating decision denying the Veteran's claim of entitlement to a disability rating in excess of 30 percent for bilateral hearing loss.  The Veteran timely filed a notice of disagreement (NOD) with respect to that claim.  See November 2014 NOD (indicating disagreement with evaluation for bilateral hearing loss).  Therefore, the Board has jurisdiction over the issue.  As explained in the Remand section, however, the RO has not had time to issue a Statement of the Case (SOC), so the claim is not ripe for a determination of the merits at this time.  See 38 C.F.R. § 19.9(c) (2014).

The Board has jurisdiction over the claim that there was clear and unmistakable error (CUE) in the January 2003 rating decision and the Veteran has indicated the matter is ripe for a determination on the merits.  See March 2015 Board Hearing Tr. at p. 7 ("[A]s part of the effective date claim, the regional office did consider the clear and unmistakable error aspect.  So, you do want me to look at that as well?  [Veteran's Representative]:  Uh, please.").  The Board has separately listed above the effective date and CUE claims relating to his service-connected migraines because, although they are factually related and listed as a single issue in the SOC, they are analytically distinct.  The CUE claim involves multiple theories of entitlement to relief, including an alleged due process violation.  Each of those theories are considered below in the context of the CUE claim.

The Veteran has indicated that he desires an earlier effective date for the grant of service connection for dysthymia.  See November 2014 Veteran Statement (setting forth arguments under heading:  "Earlier effective date for Migraines AND Dysthymia" (emphasis in original)).  However, the assigned effective date for dysthymia was not initially appealed.  See November 2009 NOD (indicating, with respect to dysthymic disorder, disagreement only with the initially assigned disability rating).  During the March 2015 Board Hearing, the Veteran and his representatives did not indicate that the claim was at issue and it has not otherwise been developed or adjudicated by the RO.  Therefore, the Board will not address that claim in this decision.

The issue of entitlement to an effective date earlier than July 30, 2008, for the grant of service connection for dysthymia has been raised by the record in a November 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014).

The issue(s) of entitlement to a disability rating in excess of 30 percent for service-connected bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.

FINDINGS OF FACT

1.  In a January 2003 rating decision, the RO denied service connection for migraine headaches.  The Veteran did not file a Notice of Disagreement, submit any additional evidence within one year of that rating decision, or take any further steps to appeal that determination.

2.  There is no communication or document in the claims file subsequent to the January 2003 rating decision and prior to July 15, 2008, that can be construed as a request to reopen the claim of entitlement to service connection for migraine headaches.

3.  The issue of whether the Veteran had migraine headaches, during the period under consideration in the January 2003 rating decision, that were etiologically related to an in-service event or injury, whether by causation or aggravation, involves a weighing of the evidence as to which reasonable minds could differ.

4.  During the period on appeal, the Veteran suffered migraines roughly four times per month, but the migraines were not prostrating (or completely prostrating) attacks and were not prolonged attacks productive of severe economic inadaptability.

5.  During the relevant period, the Veteran's service-connected dysthymic disorder caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress.

6.  The Veteran's service-connected perforated tympanic membranes are not characterized by painful scars.

7.  The Veteran did not suffer from dermatitis during his active service; his current dermatitis was not manifest in active military service and is not otherwise etiologically related to his active military service; his current dermatitis is not caused by or aggravated by any service-connected disability or any treatment for a service-connected disability.

8.  The Veteran does not have a psychiatric disability consisting of obsessive compulsive disorder.

9.  The Veteran's COPD is due to his use of tobacco and his service-connected disabilities did not cause the Veteran to use (or to increase his use of) tobacco products after his active service; the Veteran's COPD did not manifest in service, is not otherwise etiologically related to his service or to any of his service-connected disabilities, and has not been aggravated by his service-connected disabilities.

10.  The Veteran's diagnosed leukoplakia and gingivitis are not related to and have not been aggravated by any of the Veteran's service-connected disabilities.

11.  The Veteran's current sleep disability is not caused by or aggravated by any service-connected disability, except dysthymic disorder and the disability rating assigned for dysthymic disorder is based, in part, on sleep impairments attributable to that condition.

12.  The Veteran's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation.


CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than July 15, 2008, for the grant of service connection for migraine headaches have not been met.  38 U.S.C.A. §§ 5103(a), 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.159, 3.160, 3.400 (2014).

2.  The RO's January 2003 decision which failed to grant entitlement to service connection for migraine headaches was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.105 (2014).

3.  The criteria for a rating in excess of 30 percent prior to October 14, 2011, for migraine headaches have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2014).

4.  The criteria for a rating in excess of 10 percent for dysthymic disorder have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9433 (2014).

5.  The criteria for a compensable rating for perforated ear drums, including by analogy to painful scars, have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.20, 4.87 (Diagnostic Code 6211), and 4.118 (Diagnostic Codes 7800-7805) (2014).

6.  The criteria for service connection for dermatitis, including as secondary to a service-connected condition, have not been met.  38 U.S.C.A. § 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.311 (2014).

7.  The criteria for service connection for a personality disorder with obsessive compulsive traits, including as secondary to a service-connected condition, have not been met.  38 U.S.C.A. § 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.311 (2014).

8.  The criteria for service connection for COPD, emphysema, tobacco disorder, and nicotine dependence, including as secondary to a service-connected condition, have not been met.  38 U.S.C.A. § 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.311 (2014).

9.  The criteria for service connection for leukoplakia and gingivitis, including as secondary to a service-connected condition, have not been met.  38 U.S.C.A. § 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.311 (2014).

10.  The criteria for service connection for a sleep disorder, including as secondary to a service-connected condition, have not been met.  38 U.S.C.A. § 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.311 (2014).

11.  The criteria for the assignment of TDIU due to service-connected disabilities have not been met.  38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and to Assist

The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In March 2015, the Veteran had a hearing before the undersigned Veterans Law Judge in which he provided testimony and argument on the issues currently on appeal.  The undersigned Veterans Law Judge specifically addressed the legal criteria relevant to the Veteran's claims and asked questions as to symptomatology, medical treatment, and the existence of any private medical opinions or other evidence that would help the Veteran's claim.  Neither the Appellant, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing.  The Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error, particularly given the waiver of any further hearing on the increased rating issue on appeal.

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In the instant case, notice was provided to the Veteran on multiple occasions, including in August 2008 (two separate letters), March 2009, December 2009, April 2011, October 2011, December 2011, April 2014, and July 2014.  The contents of the notice letters fully comply with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  The Board concludes that VA satisfied its duties to notify the Veteran.

VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013).

VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO associated with the claims file the Veteran's service treatment records, private treatment records, and VA treatment records.  The Veteran has not identified any relevant records aside from those that are already in evidence.  So, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.

VA also satisfied its duty to obtain medical examinations.  In October 2008, January 2010, and October 2011, VA provided the Veteran with medical examinations with respect to his migraines.  The record also includes a February 2010 addendum opinion with respect to his migraines.  The examinations and opinions are adequate as the VA examiners reviewed the Veteran's pertinent medical history, conducted a clinical evaluation of the Veteran, and provided adequate discussion of relevant symptomatology.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).  The Veteran has challenged some of the medical conclusions, but has not alleged that the examinations or resulting opinions were inadequate.  As discussed more fully below, the Board found the opinions adequate and sufficiently persuasive to be entitled to probative weight.

With respect to the Veteran's claims relating to mental health conditions, VA provided examination in October 2008, January 2010, and October 2011.  The record also includes September 2009 and February 2010 addendum opinions.  These examinations and opinions are also adequate as the VA examiners reviewed the Veteran's pertinent medical history, conducted a clinical evaluation of the Veteran, and provided adequate discussion of relevant symptomatology.  See Stefl, 21 Vet. App. at 123-24; Barr, 21 Vet. App. at 311-12.

The Veteran also had VA examinations with respect to his tympanic membranes in September 2009 and January 2010, with respect to his skin condition in October 2008 (with a November 2008 addendum) and January 2009, and with respect to his respiratory condition in January 2010.  The examinations and opinions are adequate too as the VA examiners reviewed the Veteran's pertinent medical history, conducted a clinical evaluation of the Veteran, and provided adequate discussion of relevant symptomatology.  See Stefl, 21 Vet. App. at 123-24; Barr, 21 Vet. App. at 311-12.

With respect to the claims for service connection for leukoplakia (also claimed as gingivitis) and for a sleep disorder, VA has not provided examinations.  However, VA is not required to provide an examination in every case.  Rather, VA must provide a medical examination when the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim.  See 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet.App. 79, 81-86 (2006).  

As discussed in more detail below, the Board has determined that there is no indication that either condition is related to any event or injury in active service or to any service connected condition.  The Veteran's theory was that these conditions were caused by tobacco use which was due to or aggravated by service-connected conditions, but the Board has rejected the claim that the Veteran's tobacco use was caused, aggravated, or increased by his service-connected disabilities.  The criteria for obtaining a VA examination with respect to these conditions have not been met.  38 U.S.C. § 5103A(d)(2); McLendon, 20 Vet. App. at 85-86.

Finally, the medical opinions noted above sufficiently address the effect of each of his service-connected conditions on his employability and the record also includes private opinions and, with respect to hearing and tinnitus, January 2010 and February 2010 VA opinions discussing the effect of his medical conditions on his employability.

VA has no obligation to obtain further medical examinations or opinions in connection with the claims on appeal.  See 38 U.S.C.A. § 5103(A)(d); see also Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003).

As for the CUE claims, those are based on the evidence of record at the time of the challenged decision; there is no evidentiary development for such claims.  See, e.g., 
Livesay v. Principi, 15 Vet.App. 165, 178 (2001) ("These rules [implementing the VCAA] make clear that several of the claimant-friendly provision of title 38 generally applicable to the adjudication of VA benefits claims do not apply to CUE motions."; "there is nothing in the text of the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to CUE motions"); see also Parker v. Principi, 15 Vet.App. 407, 412 (2002) (citing Livesay for the proposition:  "the VCAA is not applicable to CUE matters").

Accordingly, the Board finds that no further action is necessary to comply with the duty to assist provisions of the VCAA.  The Board will address the merits of the CUE claims.

In conclusion, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

II.  General Legal Principles

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).

In deciding the Veteran's claim, 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.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value.

Provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

III.  Earlier-Effective Date for Service Connection for Migraines

The Veteran makes various arguments in support of his claim of entitlement to an earlier effective date for service connection for migraine headaches. 

As an initial matter, the Board notes that the Veteran's claim of clear and unmistakable error (CUE) in the January 2003 rating decision denying entitlement to service connection for migraine headaches is a separate claim and is denied below.  The January 2003 rating decision was not appealed, so it became final.  38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014).  The Veteran's argument that his statements during earlier VA examinations constituted an informal claim for migraines, see March 2015 Board Hearing Tr. at p. 8 (discussing statements about migraines during a 1998 VA examination for tinnitus), have no merit with respect to an earlier effective date because the January 2003 denial was a denial of all claims of entitlement to service connection pending at that time.  If the Veteran felt that the RO failed to fully and properly address the merits of his migraine claim, his options were to appeal that decision or file a CUE claim.  See Deshotel v. Nicholson, 457 F.3d 1258, 1262 (Fed. Cir. 2006) (holding that a veteran's remedy for an RO's alleged failure to address a pending claim in a rating decision is "either to file a timely direct appeal or to file a CUE claim seeking to reopen the...RO decision").  Outside of the CUE claim addressed below, the January 2003 rating decision was final and any claims prior to that decision are irrelevant to determining the correct effective date.

As a result, the decision at issue with respect to the claim of entitlement to an earlier effective date (not based on CUE) is the November 2009 grant of entitlement to service connection for migraine headaches subsequent to reopening the January 2003 denial.

The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(q)(2), (r) (2014).

However, pursuant to 38 C.F.R. § 3.156 (c), a final decision will be reconsidered when new and material evidence, in the form of service records, results in the reopening of a claim and a retroactive evaluation may be assigned.  See Mayhue v. Shinseki, 24 Vet. App. 273, 277 (2011); 38 C.F.R. § 3.156(c)(1) ("Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.").  The 38 C.F.R. § 3.156(c)(2) exception to subsection (c)(1) when "the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records", has no application to the case at hand.

Finally, 38 C.F.R. § 3.156(c)(3) states that "[a]n award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the previously decided claim."

The Veteran's earlier effective date claim hinges, then, on his allegation that his "service entrance examination[, which documented a pre-service history of migraines,] was not associated with his claim for migraine."  See November 2014 Veteran (Second) Statement; November 2014 Veteran (First) Statement ("The original claim was reopened in 2008, with a Service Medical Record not previously considered or before the examiner or deciding official when the examination or the original claim decision was made and subsequently denied."; and citing 38 C.F.R. § 3.156(c)(3)); November 2014 Supporting Arguments in Response to SSOC ("the VA failed to specifically discuss the Veteran's Service Medical Record (Form 93, Entrance Examination) which clearly noted the Veteran's pre-existing headaches and was used all or in part to re-open the claim").  As the Veteran has noted, the crux of the matter is whether the referenced service medical record was associated with the claims file at the time of the January 2003 denial.

The Board finds, upon review of the claims file, that the service treatment records associated with the claims file in 1996 included the "Entrance Examination" (actually, the document is the November 1974 Report of Medical History) relied upon by the Veteran.  While the Veteran indicates that he did not receive the document, the claims file documents VA's receipt of service treatment records covering the Veteran's entire period of active service at least as early as 1996 and references those records, generally, in a March 1997 rating decision.  Moreover, the January 2003 rating decision at issue also notes consideration of "Service Medical Records from November 5, 1974 through August 30, 1976."  Not coincidentally, although the Veteran's period of active service began in mid-November 1974, the Report of Medical History at issue is dated November 5, 1974, and there are no other service treatment records from November 5, 1974 other than the November 1974 Report of Medical Examination (which contains no indication of a pre-existing headache condition).  The evidence of record establishes that the disputed Report of Medical History was associated with the file prior to the January 2003 denial.  In these circumstances, 38 C.F.R. § 3.156(c)(3) is not for application because the service medical record at issue was associated with the claims file.

The Veteran argues, however, that the November 1974 Report of Medical History and information contained therein was not considered, so was constructively not part of the claims file.  See, generally, November 2014 Statements and Arguments.  He contends that the Report of Medical History could not be "new" evidence and could not form the basis for reopening the previously denied claim unless it had not been previously considered.  Id.  

The regulations do not provide an exception (other than CUE) for the failure to adequately consider evidence that is associated with the claims file.  See 38 C.F.R. § 3.156 (providing an exception where evidence is not associated with the file, rather than not considered, at the time of the prior denial).  Furthermore, the November 2009 rating decision at issue noted, with respect to new and material evidence, that (a) the Veteran had not alleged an in-service injury or disease in his earlier claim or during the development leading up to the January 2003 denial of his migraine claim and (b) the evidence in 2009 included the results of an October 2008 VA examination linking his current migraines with an in-service aggravation of a migraine condition that pre-existed his military service.  In short, the November 2009 rating decision was not based on reconsideration of the November 1974 Report of Medical History, it was based on new medical evidence establishing an in-service aggravation of a pre-existing condition.  The November 1974 Report of Medical History only documented a pre-service medical history that included migraine headaches.  Specifically, it indicated by history that the Veteran had or previously experienced "Frequent or severe headaches" and included a physician's later note: "Headache- occ".  The document did not establish an in-service manifestation of migraines or, more to the point, that the Veteran's active service aggravated any pre-existing migraine condition.  In other words, the Report of Medical History did not establish or tend to establish the missing nexus link in his claim.  The new and material evidence available in November 2009 was the medical examiner's positive nexus opinion and that is the evidence, rather than the Report of Medical History ("Entrance Examination"), that warranted a grant of service connection.

The Veteran's claim of entitlement to service connection for migraine headaches was denied by a final, unappealed January 2003 rating decision.  38 C.F.R. §§ 20.302, 20.1103.  The Veteran first filed a claim to reopen the previously disallowed migraine claim on July 15, 2008.  That claim was granted in a November 2009 rating decision.  Therefore, the correct effective date of the grant of entitlement to service connection for migraine headaches is July 15, 2008.  38 C.F.R. § 3.400(q)(2), (r) (2014).  That is the date the RO assigned.

The Veteran does not meet the criteria for establishing an effective date prior to July 15, 2008, for the grant of service connection for service connection for migraine headaches.  The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority.  On the facts found above, an effective date for the grant of service connection for migraine headaches earlier than July 15, 2008, is not warranted.  There is no reasonable doubt to be resolved as to these issues.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).   The claim for an earlier effective date is denied.

IV.  Clear and Unmistakable Error (CUE) in January 2003 Rating Decision

The Veteran claims that the RO committed CUE in its January 2003 rating decision denying entitlement to service connection for migraines.  His claim of CUE is based on two theories:  (1)  His service medical record noting pre-service, severe headaches was "overlooked, not associated with the claim, or intentionally disregarded"; and (2) There was an improper alteration of a September 2002 VA Examination report.

Clear and unmistakable error (CUE) is "a very specific and rare kind of error.  It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error."  38 C.F.R. § 20.1403 (2014).  Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable.  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Court has established a three-prong test to determine whether there is CUE in an RO decision: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory-regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question.  See Damrel v. Brown, 6 Vet.App. 242, 245 (1994); 38 C.F.R. § 20.1403; Russell v. Principi, 3 Vet.App. 310, 314 (1992) (en banc).  VA's failure to comply with the duty to assist cannot constitute CUE.  See 38 C.F.R. § 20.1403(d)(2) (2014); see also Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002) ("[A] breach of the duty to assist cannot constitute CUE.").  Likewise, an allegation that the adjudicator improperly weighted or evaluated evidence cannot constitute CUE.  See 38 C.F.R. § 20.1403(d)(3) (2014); see also Damrel, 6 Vet.App. at 246.

Overlooked or Disregarded Service Treatment Record

The Board will first address the Veteran's CUE contentions with respect to the allegedly overlooked, incomplete, or disregarded "Entrance Examination" (again, the November 1974 Report of Medical History).  The Veteran's argument is that, if the RO had properly considered the Report of Medical History in January 2003, it would have granted his claim.  See, generally, November 2014 Veteran Statements and Arguments.  The Board has already determined, as discussed above, that the November 1974 Report of Medical History was associated with the claims file as early as 1996 and, in any case, by January 2003.  Therefore, the Board will not further address that contention.

His November 1974 Report of Medical History (i.e. "Entrance Examination") indicates:  "Yes - Frequent or severe headaches" and, in the physician portion, "headache - occ."  However, the November 1974 Report of Medical History, coming as it did prior to the start of his active service, does not and could not indicate any in-service event and does not establish by clear and unmistakable evidence that the Veteran had a headache condition at enlistment.  It merely indicates he had a history of frequent or severe headaches.  His service treatment records during his period of active service do not document an in-service manifestation of the claimed migraine headache condition.  Therefore, the fact that the Veteran occasionally had headaches prior to service had no probative value with respect to the determinative question in January 2003, specifically, whether a post-service headache condition was due to an in-service disease or injury or, alternatively, was caused or aggravated by a service-connected condition.

The Veteran argues, to the contrary, that this document would have led the September 2002 VA examiner and the January 2003 adjudicator to conclude that he had a pre-existing migraine headache condition.  However, the term "noted" denotes only such conditions that are recorded in examination reports.  38 C.F.R. § 3.304(b).  The existence of a condition prior to service reported by the Veteran as medical history does not constitute notation of that condition, but will be considered together with all other material evidence in determining the question of when a disease or disability began.  See 38 C.F.R. § 3.304(b)(1).  Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof."  Id.

Even assuming the Report of Medical History, properly considered, would have led to the conclusion that the Veteran had a pre-existing chronic migraine headache condition, it still fails to establish (and does not tend to establish) that the Veteran had an in-service manifestation or worsening of the condition.  The Veteran's claim was denied on the grounds that "the evidence [did] not show that [his] migraines are related to [his] service connected disability, nor is there any evidence of migraines during military service."  January 2003 Rating Decision.  In other words, the RO determined that the evidence did not show a causal relationship between the Veteran's service-connected disability and his current migraines or between his active service and his current migraines.  The Board finds that the Report of Medical History is not, even giving all benefit of the doubt to the Veteran, such strong evidence that a reasonable adjudicator could reach only one conclusion with respect to the in-service disease/injury and nexus/aggravation elements of the Veteran's claim when viewing the Veteran's statements and that document in context of the entire record.  See Damrel v. Brown, 6 Vet.App. 242, 245 (1994); 38 C.F.R. § 20.1403.  While the Veteran argues the RO should have reached a different conclusion if it had properly considered the Report of Medical History, the Board finds that, at the least, reasonable minds could differ on that question.  This is particularly so when considering the service medical records which are silent for any complaint of migraines, the post-service medical evidence of record which indicated a long delay in seeking treatment for migraines after service, and the negative etiological opinions of record.  The adjudicator's weighing of (or alleged failure to give any weight to) that evidence was not CUE and, so, the January 2003 rating decision will not be disturbed on that basis.



Allegedly Improper Alteration of VA Examination Report

The Veteran's remaining contention is that the January 2003 rating decision contains CUE because it relied on a September 2002 VA report of examination which, he alleges, was altered improperly.  See March 2015 Veteran Statement and Arguments; March 2015 Board Hearing Tr. at pp. 5-8.

As discussed in the October 2014 SSOC, the Cleveland VAMC, at the time, had a standard practice whereby examination reports were reviewed by the C&P Examination Coordinator prior to being approved for use in evaluating veterans' benefits claims.  In this case, the VA examiner's September 2002 report recounted the Veteran's contentions (including that "the frequency of headaches [had] not changed in 25 years"), his documented medical history, and the examiner's physical findings.  The examiner diagnosed "Migraine headaches of undetermined etiology."  His typewritten conclusion was:  "It is as likely as not that the veteran's migraine headaches are secondary to his service-connected condition of tinnitus."  No explicit rationale for the stated conclusion was provided.  The prior discussion of medical history and the stated diagnosis also failed to indicate any facts or reasoning supportive of a finding of a likely association.

Pursuant to normal Cleveland VAMC practice, the report was reviewed for errors.  The reviewing physician (Dr. B.F.) made a handwritten correction so that the conclusion read:  "It is not as likely as not that the veteran's migraine headaches are secondary to his service-connected condition of tinnitus."  (emphasis added).  The Board notes that this resolves the apparent inconsistency between the substance of the report and the stated conclusion.  It seems likely, though the Board will not assume it is the case, that the change was the correction of a typo (i.e. omission of the word "not" in the original typewritten report).  In any event, the change was made by a supervising physician pursuant to standard quality-control procedures.

The Board finds that the presumption of regularity applies in this instance.  The Court has applied a presumption of regularity to all manner of VA processes and procedures.  Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed.Cir. 2004) ("The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties."); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed.Cir. 2008) (applying the presumption of regularity to VA examinations); see also Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed.Cir. 2011).  Applying this legal principle to the present instance, it is presumed that the RO went through normal procedures in approving the VA examination report for use in adjudicating the Veteran's claim.  Clear evidence is required to rebut the presumption of regularity.  Miley, 366 F.3d at 1347.

There is no indication that the handwritten correction to the September 2002 examination was an unlawful or otherwise improper alteration.  It was undeniably a change; however, other than the Veteran's current allegations, there is no indication that the change was anything other than a contemporaneous correction pursuant to normal, quality-control practice.  The factual scenario here is unlike the circumstances presented in Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009).  In fact, the VA examination report specifically included a place for the provider's signature approving the final report.  See September 2002 VA Examination (containing a signature line for "Provider").  The report, with changes, was initialed by Dr. "B.F." and, as explained in the October 2014 SSOC, Dr. B.F. was the C&P Examination Coordinator at the Cleveland VAMC who commonly reviewed and corrected examination reports of staff physicians.  This is not a case, as in Cushman, where an unknown individual alters a medical report subsequent to finalization of that medical report and inclusion of that report in a patient's official records.  See 576 F.3d at 1293 (noting alterations did not appear in the official record, were made by an unknown individual, and VA was unable to provide a "reasonable explanation" for the altered record after conducting an investigation into the matter).

The handwritten correction, while it did change the ultimate conclusion, did not deprive the adjudicator of the correct facts, because the handwritten change was made pursuant to an RO-level quality-control process to ensure that the report accurately stated the examiner's conclusion.  As noted already, the form of the report presupposes review and approval as part of the finalization process.  That is what occurred in this case.  Absent clear evidence that the handwritten addition was contrary to the examiner's actual conclusion (rather than a correction by a supervising physician to reflect the examiner's intended conclusion), the presumption of regularity controls.  Miley, 366 F.3d at 1347.

Because the alteration did not deprive the adjudicator of the correct facts as they were known at the time, this contention of CUE is without merit.  

The Veteran argues that the presumption of regularity relied upon above is rebutted by the fact that the Cleveland VAMC did not follow the VBA Adjudication Procedure Manual (M21-1MR).  See March 2015 Veteran Statement and Arguments.  The M21-1MR provides particular procedures to be followed by VA adjudicators when a VA medical examination report is deemed to be insufficient.  However, at the time of the September 2002 examination and the January 2003 rating decision, the manual in use was the M21-1, rather than the M21-1 Manual Rewrite (MR).  The substance of the Veteran's argument remains, though, because the corresponding provision in the old version is largely the same.  See M21-1, Part VI, Chapter 1, Section 1.07(b) ("Insufficient Reports:  Return reports that are insufficient in any essential aspect to the clinic, or health care facility Director, with a statement setting forth the deficiencies to be remedied.").

The adjudication manuals (both M21-1 and M21-1MR) set forth the procedures to be followed by the Veterans Benefits Administration (VBA) in assisting veterans in the development of their claims for compensation or pension benefits and in adjudicating those claims.  The procedures are not, by their terms, applicable to the Veterans Health Administration (VHA) in preparing an examination report.  Therefore, the fact that the Cleveland VAMC followed its own procedures for preparing and finalizing examination reports prior to sending them to the RO (VBA) rather than the M21-1 procedures does not rebut, or tend to rebut, the presumption of regularity.  Additionally, the Adjudication Manual procedures are precisely to ensure the review and finalization of reports by VHA such as that performed by the Cleveland VAMC in this instance.  Notably, one of the elements that must be present for an examination report to be sufficient is that it "must be signed by physicians."  M21-1, Part VI, Chapter 1, Section 1.07(d) (placing responsibility for ensuring the qualifications of the examiner and the completeness of the report on the VAMC).  The approval procedure used by the Cleveland VAMC (involving review and signature by a supervising physician) was consistent with the substance and purposes of the Adjudication Manual procedures, though the latter were not directly applicable to the VAMC.  The procedure followed by the Cleveland VAMC was not irregular or improper.

To the extent the Veteran's argument implicitly includes a contention that the RO (rather than VAMC) committed CUE by failing to return the report to the examiner as inadequate because it had a handwritten correction, the claim has no merit.  The argument amounts to an allegation that VA erred in failing to provide an adequate examination.  A failure to fulfill the duty to assist cannot, as a matter of law, constitute CUE.  38 C.F.R. § 20.1403(d)(2); Cook, 318 F.3d at 1344-45.


Due Process

The Board will also briefly address the related and intertwined contention of the Veteran that his due process rights were violated by the alteration.  See March 2015 Veteran Statement and Arguments.  The findings of fact discussed above are dispositive of the due process claim as well.  The alteration was not improper and, so, is distinguishable from the situation in Cushman.  

In making this determination, the Board recognizes that fraudulent intent is not necessary for a finding of an improper alteration.  Cushman, 576 F.3d at 1300.  However, the Federal Circuit made clear that the adjudication in the Cushman case was "tainted by the presence of an improperly altered document."  Id. at 1299 (emphasis added).  While fraudulent intent is not necessary, some level of impropriety is.

In the Cushman case, the alteration (a) was made by an unknown individual, (b) was not contained in the original, official medical record, and (c) was not made in accordance with any usual or customary quality control procedures.  Id. at 1293-94.  Moreover, in Cushman, the veteran only learned of the alteration well after his claim had been adjudicated.  Id. at 1293-94 (discussing adjudication based on altered report in 1980 and discovery of alteration by the Veteran in 1997).  In Cushman, an investigation by the Chief Executive Officer of the Portland RO was unable to determine "a reasonable explanation" for the discrepancy in the original and altered records.  Id. at 1294.  

Here, subsequent to a September 2002 examination by a staff physician, the Cleveland VAMC issued a report that was finalized by a supervising physician in November 2002 pursuant to customary procedures.  The official version of the September 2002 VA examination report, which is the only version of that report in the Veteran's medical records, contains a handwritten correction by a known, supervising physician made pursuant to standard quality control processes at the Cleveland VAMC.  The Veteran had every opportunity prior to, during, and after the January 2003 rating decision to challenge the findings included in the report and to question the propriety of the handwritten correction.  For all the reasons discussed above, the Board finds that the handwritten correction was not improper and adjudication of the claim based on that finalized VA examination report did not deprive the Veteran of due process of law.

The Veteran's claim of CUE in the January 2003 rating decision is denied.

V.  Increased Rating for Migraine Headaches

The Veteran has appealed the assignment of a 30 percent rating for the period prior to October 14, 2011, but has not challenged the later rating.  See, e.g., March 2015 Board Hearing Tr. at p. 2 ("So, it's resolved as of October 2011 forward with the highest rating?  [Veteran's Rep]:  Correct.").  As noted above, the effective date for the grant of service connection for migraine headaches is July 15, 2008.  Consequently, the period under consideration with respect to the claim for a higher disability rating for migraine headaches is the period from July 15, 2008, to October 14, 2011.

The Veteran is appealing the original assignment of a disability evaluation for migraine headaches following award of service connection.  In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 

Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. §§ 3.102, 4.3.  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 required for that rating.  Otherwise, the lower rating will be assigned.  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 (2014).  Also, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Migraine headaches are evaluated under Diagnostic Code (DC) 8100 in the Schedule of Ratings for Neurological Conditions and Convulsive Disorders found in 38 C.F.R. § 4.124a.  See 38 C.F.R. § 4.124a, DC 8100 (2014).  Under DC 8100:

A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months.  The highest, 50 percent schedular rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

The Board notes that the 50 percent criteria require "very frequent" migraines that are "completely prostrating" and "prolonged attacks productive of severe economic inadaptability."  See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (use of conjunctive "and" indicates all criteria must be met).  In other words, the difference between the 30 percent criteria and the 50 percent criteria include a difference in frequency (once per month vs. "very frequent"), severity (characteristic prostrating vs. "completely prostrating"), duration ("characteristic" vs. "prolonged"), and economic impact (no explicit consideration vs. "severe economic inadaptability").  An allegation or proof that the migraines are more frequent than the 30 percent criteria is not enough, alone, to meet the criteria for a 50 percent rating.  Of course, the question is which criteria the migraine symptoms more nearly approximate, but the showing requires significantly more than a frequency greater than once per month.  38 C.F.R. § 4.7.

The Veteran claims that, during the period under consideration, he had frequent prostrating attacks that warrant a 50 percent schedular rating.  See, e.g., March 2015 Board Hearing Tr. at pp. 5-6.

The Board acknowledges that the Veteran contends that his service-connected migraines warrants a higher initial evaluation and has carefully reviewed all the evidence, including his and others' lay statements regarding his symptoms.  However, in determining the actual degree of disability, medical records and an objective examination by a medical professional are more probative of the degree of the Veteran's impairment.  This is particularly so where the rating criteria require analysis of the clinical significance of the frequency, severity, and duration of symptoms, but the Veteran is a layman.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012).  The Board finds that the medical opinions of this Veteran and his spouse, neither of whom have medical training, are not competent evidence of the clinical significance of his migraine symptoms.  Id.  Similarly, the Board is also incompetent to evaluate the clinical significance of the reported symptoms, in contrast to applying the rating criteria in light of the competent medical evidence.  See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) (Board may not make independent medical assessments); see also Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis.").

The Board, however, has considered the Veteran's and his spouse's subjective reports of symptoms, particularly as they illuminate or underscore the medical opinions of record.

The Veteran was afforded a VA examination in January 2010.  The examiner concluded that the Veteran had migraine headaches roughly four times per month.  See, e.g., January 2010 VA Examination ("He feels that the number of disabling days months [sic] where he is bedridden is 2-3x more frequently [sic] than several years ago.  He rarely goes a week without getting at least one headache."); see also February 2010 Addendum to VA Examination ("The patient suffers from weekly migraine headaches which per history have been escalating in frequency over the years but NOT so much in terms of intensity or refractoriness to medication.").  However, as the February 2010 addendum opinion quoted above indicates, the examiner determined that the severity had not been increasing and, moreover, had concluded that the migraine headaches were not, from a clinical perspective, prostrating.  See January 2010 VA Examination ("He is less likely than not prostrated from these headaches based upon his statement that he never seeks emergency medical care for the episodes although he says that for the duration of his symptoms he is 'bedridden.'").

The Veteran is correct that the regulations do not require that a claimant seek emergency medical care to warrant a 50 percent evaluation of a migraine disability.  However, the VA examiner was not applying legal criteria, rather he was making a clinical evaluation.  The Board does not interpret the report as indicating that the use of emergency medical care is a necessary factor to conclude that the headaches are "completely prostrating", rather than that the lack of need for emergency medical care is a factor the examining physician found relevant based on his education, training, and experience.  The Board cannot say that the failure to seek emergency medical care is irrelevant to that clinical evaluation and the lack of emergency medical care provides some support for the examiner's conclusion regarding the severity of the headaches.  Colvin, 1 Vet.App. at 174; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (setting forth factors to be considered in assigning probative weight to an opinion). 

There are VA progress notes that indicate potentially greater frequency and which suggest a significant duration (3-6 hours).  See March 2010 VA Progress Note ("Headaches, Midrin helps if he catches headache early.  Frontotemporal, and behind eyes.  Says temporal arteries become tender, sees spots in front of eyes, has to be in dark room for 3-6 hours, drinks coffee after seems to help.  Has 2-3 headaches a week.  6-8/month.  Migrne [sic] and temporal arteritis characteristics.  Last headache 3 days ago.").  However, the note seems to indicate "characteristic" migraines.  Even if the use of that adjective is construed to indicate "characteristic prostrating" migraines, it does not connote "completely prostrating" migraines nor "prolonged attacks" rather than attacks of characteristic duration.  Again, the clinical significance of 4-6 hour headaches, in contrast to headaches of shorter or longer duration, is a medical determination.  See October 2011 VA Examination (including a DBQ Questionnaire that has duration options of less than one day, 1-2 days, more than 2 days, or other).  The VA physician who wrote the March 2010 progress note did not offer an opinion on the clinical significance of the severity, frequency, or duration and the Board will not offer its own clinical evaluation, particularly where a contemporaneous VA examination produced a competent, thoroughly reasoned, and factually well-supported opinion precisely addressing the clinical significance of the frequency, severity, and duration of the Veteran's headaches.  Colvin, 1 Vet.App. at 174; Nieves-Rodriguez, 22 Vet. App. at 304.

The medical evidence is against finding that the Veteran's migraine headaches are "completely prostrating".  In addition, the evidence does not support a finding that the migraines consist of "prolonged attacks productive of severe economic inadaptability."  The Board discusses the impact on employability in depth below, and that discussion is incorporated herein by reference; but, the Veteran had migraines when he was employed full-time, his migraines had not increased in severity since that time (though they had increased in frequency), and his migraines had only a limited effect on his employability.  See July 2008 Private Opinion Letter (opining that the Veteran's migraines are exacerbated by exposure to "industrial noise levels" and implying that, in that sense, his migraines limit his employability).  He did occasionally miss work due to his migraines.  See, e.g., September 1998 Private Treatment Note (indicating Veteran was being treated for migraines, but specifying that the Veteran was able to return to work the same day without specifying any period during which he could not work); March 2015 Board Hearing Tr. at pp. 9-11.  The Board finds that the missed days from work and having to avoid industrial level noise (something that was not typical in the Veteran's line of work) did not create and does not amount to "severe economic inadaptability."

While the October 2011 VA examiner opined that the Veteran's migraines impacted his ability to work, his rationale was that he went on disability from his delivery job "primarily due to hearing loss and recurrent migraines triggered by loud noise in distribution center."  As is discussed more fully below, this is inaccurate.  See Nieves-Rodriguez, 22 Vet. App. at 304 (holding that a medical opinion merits probative weight when it includes "factually accurate, fully articulated, sound reasoning for the conclusion").  In fact, the Veteran was unable to continue as a letter carrier primarily due to his non-service-connected knee disability.  While his hearing loss, tinnitus, and migraines did limit his ability to work in the distribution center of his employer, the Board finds that that limitation does not amount to "severe economic inadaptability", but a limitation that the Veteran was able to work around for nearly twenty years of employment.  In addition, the Veteran later had other, short-term employment that he left for reasons completely unrelated to his migraines.  See January 2010 VA Examination (noting the Veteran was "employed briefly at a car rental agency in 2000 but 'couldn't get along with the twenty-somethings who were trying to...tell me what to do'").

While the two jobs mentioned above predate the period on appeal, the Board finds that the medical evidence does not support a finding that the migraines were so severe and prolonged that they resulted in "severe economic inadaptability."  As discussed above, the symptomatology had not worsened to such an extent that the migraines would have prevented him from working in the same or similar occupations.

Based on these findings, the Board concludes that the Veteran's migraine symptoms, while they meet and (in terms of frequency) may even exceed the 30 percent rating criteria, do not more closely approximate the 50 percent rating criteria prior to October 14, 2011.

The evidence is not in equipoise, so the benefit of the doubt doctrine has no application.  Gilbert, 1 Vet.App. at 53-56.  Entitlement to a disability rating in excess of 30 percent prior to October 14, 2011, for service-connected migraine headaches is denied.

Because the Board must consider the combined impact of all of the Veteran's service-connected disabilities and there are multiple increased rating claims on appeal, the discussion of entitlement to an extraschedular rating for this or other disabilities is discussed in Section XIII, below.  See Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. Aug. 6, 2014).

VI.  Increased Rating for Dysthymic Disorder

The Veteran claims that he is entitled to a disability rating for service-connected dysthymic disorder in excess of the initially assigned 10 percent evaluation.  The general legal principles applicable to claims for higher initial ratings are set forth above.

The Veteran's dysthymic disorder is rated under the General Rating Formula for Mental Disorders found in 38 C.F.R. § 4.130.  See 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2014).  

A 10 percent evaluation is warranted for 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 evaluation is warranted for 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 warranted for 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; difficulty in establishing effective work and social relationships.

A 70 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, 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 the 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); inability to establish and maintain effective relationships.

A 100 percent disability evaluation is warranted where there is total occupational and social impairment due to such symptoms as:  gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

The nomenclature employed in the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as the "DSM-IV").  38 C.F.R. § 4.130.  The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between 0 and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).  The DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) which will generally reflect the need for treatment or care.  While GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record.  Therefore, they will not be relied upon as the sole basis for an increased disability evaluation.

Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school).  A score of 41 to 50 is indicated where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).  A GAF score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peer or coworkers).  A score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.  A score of 71-80 indicates that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational or school functioning (e.g., temporarily falling behind in schoolwork).

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.

As already noted, the Veteran and his spouse are lay persons.  The issue here is the clinical significance of mental health symptoms, a subject which generally requires specialized knowledge, training, and experience to properly evaluate.  The Board finds that the Veteran, his spouse, and the Board are not competent to independently evaluate the Veteran's symptoms.  See Davidson, 581 F.3d at 1316; King, 700 F.3d at 1344-45; Colvin, 1 Vet.App. at 174.  Instead, the Board will rely on the medical evidence of record to determine whether the criteria for any higher ratings are met.

The most pertinent medical evidence regarding the severity of the Veteran's mental health symptoms and their impact on his overall functioning are the two VA examinations directly addressing that issue.

In October 2008, the Veteran underwent a VA examination for his mental health disorder.  The examiner noted that the Veteran did not have suicidal or homicidal ideation, but he did have occasional concentration difficulties.  The examiner also indicated the Veteran had normal thought processes, no delusions or hallucinations, an affect "full in range", an irritable mood, and difficulties with interpersonal relations were "suggested".  The examiner stated that, "[d]iagnostically, his profile is consistent with mood disorder with maladaptive personality traits."  The examiner opined that the Veteran assigned a GAF of 65 "because of the generally mild frequency and intensity of symptoms".  In summary, the Veteran was found to have "chronic mild mood disturbance consistent with dysthymic disorder."

The examiner provided a September 2009 addendum to his opinion in which he stated:  "The examiner deems the degree of aggravation to be moderate.  However, as previously stated, the patient's psychological impairment is mild in nature and his condition appears stable."

The Veteran underwent another VA examination in January 2010.  That examiner noted that the Veteran "has not had any mental health treatment since his last C&P exam in 10/08."  The Veteran's "psychological testing appear[ed] exaggerated, and as a consequence, the resulting profiles cannot be considered valid."  The examiner was able, however, to discuss the Veteran's symptoms and their severity.  He stated: "The results of this evaluation indicate that while he is still diagnosable with a dysthymic disorder, there is no compelling reason to believe that it has worsened since his last C&P exam in 10/2008.  He has not sought treatment for the condition, and there have not been any substantial changes in his level of functioning."  He found no indication of delusions or hallucinations, normal thought processes, a memory intact for both recent and remote events, but a mood that was bitter and angry with a sense of victimization.  The January 2010 VA examiner also assigned a GAF of 65.  He provided a February 2010 addendum in which he opined that "[the Veteran] is not unemployable because of his service-connected dysthymic disorder."

These examinations are notable in that they both indicate "mild" symptoms, suggestive of a 10 percent rating, and neither describes symptoms other than a depressed or angry mood, that are consistent with the criteria for any rating higher than 10 percent.  These examinations, by two different VA examiners, are consistent in evaluating the overall severity of the Veteran's diagnosed mental health disorder as mild and resulting in, at most, minor impairments in occupational and social functioning.  For instance, both assigned a GAF of 65 which equates to some mild symptoms such as depressed mood and mild insomnia or some difficulty in social, occupational, or school functioning.  This evaluation is consistent with the other mental health and medical evidence of record.  

While there is medical evidence, as discussed more fully below, that the Veteran has some sleep difficulties, the evidence indicates that the problems are primarily related to the Veteran's COPD, are generally mild in nature, and are largely controlled by medication.  The evidence does not indicate the sleep impairments result in anything more than mild impairments in social or occupational functioning.

The Veteran relies primarily on the raw scores of psychological tests performed by the VA examiners and the results of a screening test as support for a higher rating for his psychiatric disorders.  See March 2015 Board Hearing Tr. at p. 12 ("they did a...screening evaluation, where they rated him moderate..."); March 2011 Statement in Support of Substantive Appeal ("the Beck Depression Inventory suggests that the score of 29-63 is severe not mild to moderate").  With respect to the significance of the Beck Depression Inventory and other tests, the VA examiner is competent to interpret sophisticated psychological tests in the context of the entire mental health picture, whereas the Veteran and the Board, even with the assistance of information from the internet, are not competent to undertake that analysis.  See Davidson, 581 F.3d at 1316; King, 700 F.3d at 1344-45; Colvin, 1 Vet.App. at 174.  The screening test was just that, a screening test.  It was not a comprehensive evaluation, but involved 10 questions in connection with screening tests for tobacco use, BMI, and other conditions.  See February 2015 Primary Care Nursing Note.  The Board finds that a comprehensive mental health evaluation, such as that conducted by the VA examiner, is more probative of the clinical significance and functional impact of the Veteran's symptoms than an intake screening examination consisting of 10 questions administered by a nurse.  See Owens, 7 Vet. App. at 433; Nieves-Rodriguez, 22 Vet. App. at 304.

The Veteran also relies, in part, on his contention that he has homicidal ideations, a history of substance abuse, and a past attendance of anger management sessions at the VA.  See October 2010 Statement in Support of Substantive Appeal.  The Board first notes that the VA examiners reviewed the Veteran's medical and mental health history, including the entire claims file, and evaluated his symptoms and did not find any homicidal ideation, as that term is used in the clinical sense.  Therefore, while there are medical records documenting the Veteran's belief that he has experienced homicidal ideations, no mental health professional has opined that he has clinically significant homicidal ideations or, more importantly, that any such symptoms have more than a mild impact on his occupational and social functioning.  March 2001 Request for Medical Services ("Veteran complains of depressive feelings with homicidal ideations.  Please evaluate and provide appropriate counseling or remedial services.").  The reports of homicidal ideations have been made by the Veteran largely in the context of a claim for increased benefits and, during a thorough mental health evaluation, it appeared he was exaggerating his symptoms.  See January 2010 VA Examination.  In these circumstances, the Board will not give probative weight to the Veteran's lay contentions regarding the existence and clinical significance of his mental health symptoms, including the alleged homicidal ideations, and instead relies on the medical opinions of record.

The Board also notes that the Veteran's dysthymic disorder is service-connected as aggravated by other disabilities and the aggravation has been quantified by a VA examiner.  In such cases, the disability rating is based on "the extent of aggravation" of the condition rather than the overall symptomatology.  Here, the overall symptomatology is mild and only a portion of those mild symptoms are attributable to the aggravation by the Veteran's hearing loss and tinnitus.  See 38 C.F.R. § 3.310(b); September 2009 VA Addendum Opinion.  

In short, the most thorough and persuasive evidence establishes that the Veteran's mental health symptoms are mild and cause only a minor impairment in occupational and social functioning.

The Board finds that the evidence is not in equipoise and, instead, the weight of the evidence supports finding that the Veteran's dysthymic disorder symptoms most closely approximate the 10 percent criteria for entire period on appeal.  38 C.F.R. § 4.130, DC 9411 (2014); see also Gilbert, 1 Vet. App. at 53-56.

For reasons noted above, the discussion of entitlement to an extraschedular rating for this or other disabilities is discussed in Section XIII, below.


VII.  Compensable Rating for Perforated Tympanic Membranes

The Veteran claims that he is entitled to a compensable rating for his service-connected perforated tympanic membranes.  He concedes that the rating schedule directly applicable to perforated tympanic membranes does not provide for a compensable rating given his medical condition.  However, he argues that, because there is medical evidence that his tympanic membranes are scarred and he has testified to pain, his condition should be rated by analogy to painful scars.  See, e.g., March 2015 Board Hearing Tr. at p. 26 ("the contention is...that...the scarring from the perforated...membranes are actually painful and tender...which should meet...the criteria for [a] compensable evaluation"); January 2010 VA Examination ("Tympanic membrane Scar of right TM-Light reflex displaced/Left appears perforated."; "left TM perforation"; "Diagnosis:  ...Left TM perforation").  Rating by analogy is permitted in appropriate circumstances, see 38 C.F.R. § 4.20, so the Board will consider the matter.

Scars are rated pursuant to Diagnostic Codes 7800-7805 which are set forth in 38 C.F.R. § 4.118.

Diagnostic Code 7800 provides for evaluation of burn scar(s), scar(s), or other disfigurement of the head, face, or neck.  38 C.F.R. § 4.118.  A 10 percent rating is available for a scar with one characteristic of disfigurement.  Here, the scar at issue is located in the ear (head), but it is not disfiguring as it is internal and, thus, would not meet the criteria for a compensable evaluation under Diagnostic Code 7800.

Diagnostic Codes 7801 and 7802 provide compensable ratings for scars meeting certain size and other requirements. 38 C.F.R. § 4.118.  The Veteran's representative conceded that the tympanic membrane scars do not meet the minimum size requirements to warrant a compensable evaluation under either of these Diagnostic Codes.  March 2015 Board Hearing Tr. at p. 26.

Diagnostic Code 7804 provides a 10 percent rating for 1 or 2 scars that are unstable or painful.  A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful and a 30 percent disability rating is assigned for 5 or more scars that are unstable or painful.  Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  38 C.F.R. § 4.118.

Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 through 7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118.  Here, the only effect the Veteran alleges is pain.  Diagnostic Code 7804 provides for ratings for painful scars, so Diagnostic Code 7805 is not applicable to the facts before the Board.

The Board is again faced with the Veteran's contentions, on the one hand, and medical evidence on the other.  As noted, the Veteran contends his tympanic membrane scars are painful.  However, upon review of the medical evidence, there are multiple notations, including by VA examiners, which either fail to indicate any objective evidence of pain or which explicitly note the absence of pain or tenderness.  See September 2009 VA Examination ("He denies any pain today.....There was no evidence of tenderness to the mastoids or the tragus with palpation."); January 2010 VA Examination ("Medical History (Subjective Complaints):  ...occ discharge, occ pain, occ pruritis"; but failing to note any pain on physical examination).  The indications of pain are usually, if not exclusively, linked to an active infection and, generally, do not locate the pain at the tympanic membranes.  See, e.g., August 2007 Private Treatment Note ("left canal sl red and tender, TM normal"; "Impression: mild otitis externa").

While the Veteran's report of pain is acknowledged, there is no objective medical evidence the Veteran's scar is unstable or painful.  The Veteran is a lay person and objective medical evidence is more reliable and persuasive evidence of both the existence of pain and the location/cause of the pain.  See Davidson, 581 F.3d at 1316; King, 700 F.3d at 1344-45.  Based on the medical evidence, the Board finds that the scars on the tympanic membranes are not painful and do not otherwise result in impairments not contemplated by the Diagnostic Code for rating perforated tympanic membranes.  See 38 C.F.R. § 4.20 ("Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings."); 38 C.F.R. § 4.87, DC 6211 (providing for a noncompensable rating for perforation of the tympanic membrane).  Therefore, the criteria for a 10 percent rating have not been met.  38 C.F.R. § 4.118, DC 7800-7805.

For reasons noted above, the discussion of entitlement to an extraschedular rating for this or other disabilities is discussed in Section XIII, below.

VIII.  Service Connection:  Dermatitis

The Veteran also seeks service connection for dermatitis as secondary to his service connected disabilities.  See March 2015 Veteran Statement and Argument (discussing the specifics of his claim); see also March 2015 Board Hearing Tr. at pp. 21-25.  He argues that he has chronic, recurring dermatitis that is aggravated by his service-connected dysthymia and associated anxiety.  Id.  In addition, he argues that his dermatitis is caused or aggravated by medications he takes for his service-connected migraine headaches.  Id.

Because the Veteran has not contended that his current skin disability is directly related to service or was diagnosed in service, the Board will not discuss that theory beyond noting that the Board reviewed the entire record and the evidence does not support a finding of an in-service event or a causal nexus between any such event and his current skin disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (setting forth elements of a direct service connection claim); see also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (discussing service connection for chronic diseases); 38 C.F.R. § 3.307 (setting forth criteria for service connection for chronic diseases).

In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other.  Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).  Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

The Veteran has had a skin condition during the period on appeal which has been diagnosed as eczematous dermatitis.  See October 2008 VA Examination; November 2008 Addendum (no active rash found; "undergoes remissions and flares; tends to be chronic"); see also March 2010 VA Progress Note ("came in because of pruritic rash"; "Has a number [of] small erythematous papular lesions about body, perhaps 20-30 on . . . back, fingers, arms.  Says they come on with stress....").  He alleges the skin condition is related to stress and to medication (Midrin) he takes for his service-connected migraine headaches.  See March 2015 Board Hearing Tr. at pp. 21 ("the migraine medicine, Midrin, actually causes the skin rash") and 22 ("The anxiety itself...aggravates the skin rash.").

The Board will first address the contention that medication for service-connected migraine headaches causes or aggravates the Veteran's rash.

The Veteran has submitted prescription information from the internet indicating that a possible side effect of his medication for migraines is development of a "rash".  However, he admitted at his hearing before the undersigned that no physician has ever told him that his medication causes the condition.  See March 2015 Board Hearing Tr. at p. 23 ("have any of your doctors indicated that perhaps the Midrin has caused the skin problems?  [Veteran:] No, nobody ever told me.  I read it...on the Internet.").  This lay Veteran does not have the knowledge, experience, or training to determine that his skin condition is, in fact, a side effect of his medication.  See Davidson, 581 F.3d at 1316; King, 700 F.3d at 1344-45; see also Colvin, 1 Vet.App. at 174 (holding the Board is not permitted to make its own independent medical assessments).  Moreover, there is medical evidence indicating that his medication is less likely than not the cause of or an aggravating factor with respect to his skin condition.  See January 2004 Private Opinion Letter ("Our differential diagnosis includes nummular eczema with stress exacerbation and lichenoid drug reaction less likely.  We would remotely consider a contact dermatitis.").  In addition, the Veteran noted during his hearing that he had been taking his migraine medication for "about 35 years", but that his skin condition (which is intermittent) had first appeared in or around 2001.  See March 2015 Board Hearing Tr. at p. 23; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board is entitled to consider a delay in seeking treatment and reporting symptoms).

The weight of the evidence is against finding that the Veteran's dermatitis is caused or aggravated by his migraine medication.

His other theory is that his dermatitis is aggravated by stress.  Stress is not a disability.  The Veteran alleges that his service-connected conditions cause him stress and/or make him more susceptible to stress from other sources, so he is entitled to secondary service connection on that basis.

The medical evidence of record does not establish that the Veteran's dermatitis is, at least as likely as not, aggravated by stress attributable to his service-connected conditions.  His private treatment provider did include "exacerbat[ion] by stress" in his differential diagnosis, but a differential diagnosis is not an opinion to the requisite degree of medical probability.  See January 2004 Private Opinion Letter ("Our differential diagnosis includes nummular eczema with stress exacerbation and lichenoid drug reaction less likely.  We would remotely consider a contact dermatitis."); July 2008 Private Opinion Letter ("Differential diagnosis includes nummular eczema with stress exacerbation.  He was found to be patch test positive to nickel, epoxy, and carbamix and therefore he should not be exposed to such.").  Instead, a differential diagnosis is a hypothesis of a possible, but not necessarily probable, cause.  Moreover, the private opinions only identify "stress", but do not relate the stress to any of the Veteran's service-connected conditions.  Even assuming the dermatitis is aggravated by stress, the Veteran must show more than that to meet the criteria for secondary service connection.

The Veteran has been afforded VA examinations to evaluate his skin condition and to provide opinions with respect to etiology.  The opinions have all been unfavorable.  The October 2008 VA examiner identified the condition as "secondary to allergic contact dermatitis" or a "systemic reaction to nickel".  October 2008 VA Examination.  The examiner went on to discuss the Veteran's allegation that his hearing loss caused his dermatitis.  While noting that "there may be an indirect correlation", in that hearing loss contributed to loss of employment which caused stress which resulted in flares of the condition, the examiner opined that hearing loss does not directly result in eczematous dermatitis."  Id.  

A subsequent VA examination resulted in very similar conclusions.    See January 2009 VA Examination (discussing the history, symptomatology, and likely cause of the Veteran's skin condition).  The examiner opined:  "In this patient, it is difficult to relate stress to his skin disease as the stress associated with ineffective communication is constant and his skin disease is intermittent (3-4x per year).  In addition, the onset of his rash does not coincide with his hearing loss temporally."  Id.  

The Veteran has contested the examiner's reliance on the intermittent nature of the dermatitis and the constant nature of the stress related to his service-connected conditions, see March 2015 Veteran Statement and Arguments, but the Board finds that these facts are relevant to the etiological (causation/aggravation) question.  While the intermittent nature of the skin condition does not definitively disprove a connection to stress due to service-connected disabilities, the examiner's conclusion that it makes any such connection less probable is reasonable and entitled to some probative weight.  Nieves-Rodriguez, 22 Vet. App. at 304.  Neither the Veteran nor the Board are competent to substitute or offer their own medical judgment on the clinical significance of the timing of onset and appearance of the condition.

The competent medical opinions of record that address the relevant issue to the requisite degree of medical probability are all against the Veteran's claim.  The indirect chain of events (service-connected disabilities contributing to unemployment contributing to stress which aggravates dermatitis) is too attenuated, given the medical opinions of record, to convince the Board that the Veteran's service-connected disabilities aggravated the Veteran's dermatitis as the term "aggravation" is used in adjudicating claims for disability compensation benefits.  38 C.F.R. § 3.310(b) (defining "aggravation" as "any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury" (emphasis added)).  

Stress may be shown to reduce a patient's ability to recover from any number of medical conditions, but linking a service-connected condition to increased stress is not sufficient to meet the definition of aggravation.  The Board reiterates that "stress" is not synonymous with a mental health condition such as dysthymic disorder or anxiety disorder, so an increase in severity proximately due to stress is not then necessarily "proximately" due to the mental health condition.  The Board finds, based on the competent evidence of record, that the Veteran's dermatitis was not caused by or aggravated by any of his service-connected disabilities.

The evidence is not in equipoise and, instead, the weight of the evidence is against the Veteran's claim.  Gilbert, 1 Vet. App. at 53-56.  Entitlement to service connection for dermatitis as secondary to service connected disabilities is denied.

IX.  Service Connection for Obsessive Compulsive Disorder

The Veteran claims entitlement to service connection for a personality disorder with obsessive compulsive traits, to include as secondary to service-connected disabilities.

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The Board will not discuss the presumptions for chronic diseases and other alternative means of showing direct service connection.  It is sufficient to note that all theories require a current disability.

As previously discussed, to establish secondary service connection, the evidence must show that it is at least as likely as not that a current, nonservice-connected disability has been caused or aggravated by an already service-connected disability.  Again, a current disability is a required element of a secondary service connection claim.

The Veteran claims that he has (or had at some point during the relevant period) a disability consisting of obsessive compulsive disorder.

Personality disorders are considered "congential or developmental defects" which are not diseases or injuries within the meaning of applicable legislation.  38 C.F.R. § 3.303(c) (2014); see also Johnson v. Principi, 3 Vet. App. 448, 450 (1992); Conley v. Peake, 543 F.3d 1301, 1305 (Fed. Cir. 2008).  Therefore, as a matter of law, the Veteran is not entitled to service connection for a personality disorder.

In addition, the greater weight of the evidence is against finding that the Veteran actually has obsessive compulsive disorder or any acquired psychiatric disorder other than dysthymic disorder.  

Although there are VA medical records and private medical records containing a diagnosis of obsessive compulsive disorder, the bases of those diagnoses is not clear.  Whether the diagnosis of obsessive compulsive disorder was obtained by medical history, screening questionnaire, or comprehensive mental health evaluation is not clear.  Therefore, those diagnoses are of limited probative weight.  Nieves-Rodriguez, 22 Vet. App. at 304.

On the other hand, the Veteran has undergone two comprehensive VA examinations with respect to his mental health and both examiners concluded, based on well-supported and convincingly articulated reasoning, that the Veteran does not meet the DSM-IV criteria for obsessive compulsive disorder, though he does exhibit some obsessive compulsive "personality traits."  For example, the October 2008 VA Examination, already discussed above in connection with his dysthymic disorder claim, concludes that the Veteran has "met DSM-IV criteria for dysthymic disorder and obsessive compulsive personality traits", but went on to also opine that "he does not meet the diagnostic criteria for obsessive compulsive disorder."  The examiner explained:  "Specifically, he does not display with the requisite intrusive thoughts and repetitive behaviors that characterize this disorder.  He does have a rather rigid coping style and stubbornness but these represent his underlying personality rather than an Axis I disorder."  The sole psychiatric condition diagnosed by the examiner was dysthymic disorder.

Similarly, the January 2010 VA Examination, also discussed above in more detail, concluded, after a thorough examination, that the Veteran was "still diagnosable with a dysthymic disorder," but included no other Axis I diagnosis.  On Axis II, the examiner listed "Obsessive/compulsive personality traits."

The Board assigns significant probative value to these VA examiners' opinions, because they are "factually accurate, fully articulated, [and contain] sound reasoning for [their] conclusions."  Nieves-Rodriguez, 22 Vet. App. at 304.  Based on these opinions, the Board finds that the greater weight of the evidence is against finding that the Veteran has a mental health disorder other than dysthymic disorder, a condition for which he is already service-connected.

Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. §§ 1110, 1131.  Accordingly, because the Board finds that the Veteran does not have a current psychiatric disability other than dysthymic disorder, the criteria for establishing service connection for any such alleged condition have not been met.  38 C.F.R. § 3.303; Brammer, 3 Vet. App. at 225; see also Gilpin v. West, 155 F.3d 1353, 1355 (Fed. Cir. 1998).  As discussed, to the extent the Veteran does have obsessive compulsive personality traits as part of a personality disorder, personality disorders are not considered disabilities for purposes of service connection claims.  38 C.F.R. § 3.303(c); see also Conley, 543 F.3d at 1305.

The evidence is not in equipoise, so the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. at 53-56.  Accordingly, entitlement to service connection for a personality disorder with obsessive compulsive traits is denied.

X.  Service Connection:  COPD and Nicotine Dependence (Tobacco Use)

The Veteran also seeks service connection for chronic obstructive pulmonary disease (COPD) also claimed as emphysema, tobacco disorder, and nicotine dependence.

Again, the Veteran has not argued that he is entitled to direct service connection and the record does not support a finding of any in-service disease or injury that is etiologically related to his current COPD (to include the associated emphysema).  Direct service connection (including based on presumptions or as a chronic disease) is not warranted on the evidence of record.  See Shedden, 381 F.3d at 1167.

COPD and Tobacco Use

The Veteran's first theory is that his service-connected disabilities, principally his dysthymic disorder, caused him to increase his use of tobacco which caused or aggravated his COPD.  See, e.g., March 2011 Notice of Disagreement ("This Veteran contends that his service-connected dysthymic disorder causes continued and increased smoking and because smoking is the cause of the Veteran's COPD", so he is entitled to service connection for COPD and other tobacco-related conditions).  More recently, he has also asserted that the depressive aspects of his dysthymic disorder have worsened his COPD.  See March 2015 Veteran Statement and Arguments.

Importantly, the medical evidence establishes that the Veteran's COPD is directly related to and has been caused by his tobacco use.  He has never argued otherwise.

With respect to tobacco-related claims, 38 U.S.C.A. § 1103 provides, in pertinent part, as follows: 

(a) Notwithstanding any other provision of law, a veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service for purposes of this title on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service. 

See also 38 C.F.R. § 3.300 (2014).

The provisions of section 1103 apply only to claims filed after June 9, 1998.  The Veteran's present claim of entitlement to service connection for COPD was filed in June 2010, so section 1103 and the implementing regulations bar an award of service connection for a disability arising long after service based upon a finding that such disability was caused by tobacco use during service.  38 U.S.C. § 1103; 38 C.F.R. § 3.300.  Any such claim by the Veteran must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit).

The controlling statutes and regulations do not, however, preclude the establishment of service connection based upon a finding that a disease or injury (even if tobacco-related) became manifest or was aggravated during active service or became manifest to the requisite degree of disability during any applicable presumptive period specified in 38 U.S.C.A. §§ 1112, 1116.  See 38 U.S.C.A. § 1103(b); 38 C.F.R. § 3.300.  The Veteran has not claimed and the evidence does not support any finding that his COPD became manifest during or within any applicable presumptive period after his discharge.  See, e.g., March 2011 Notice of Disagreement ("The Veteran was diagnosed with COPD in 2009.").  Service connection on this basis, then, is not warranted.

The Veteran has alleged, though, that his COPD is due to his service-connected dysthymic disorder including because the anxiety associated with that condition caused him to increase his use of tobacco.  The VA General Counsel has held that neither 38 U.S.CA. § 1103(a), nor its implementing regulations at 38 C.F.R. § 3.300, bar a finding of secondary service connection for a disability related to use of tobacco products after service.  See VAOPGCPREC 6-2003 (Service Connection for Cause of Disability or Death, 69 Fed. Reg. 25178 (2004)).  The questions that adjudicators must resolve with regard to a claim for service connection for a tobacco-related disability alleged to be secondary to a disability not service connected on the basis of being attributable to a veteran's use of tobacco products during service are:  (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability.  Id.; see also VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, Chapter 2, Section K, topic 69 (disability or death from use of tobacco products).

The Board finds that the first element is dispositive with respect to the Veteran's claim of entitlement to service connection for COPD based on increased tobacco use.  Specifically, the evidence is against finding that the Veteran's service-connected hearing loss, tinnitus, or dysthymic disorder "caused the veteran to use tobacco products after service."  There is substantial and persuasive evidence that the Veteran's tobacco use predated his active service.  See, e.g., February 2011 VA Examination (documenting Veteran's statement that he began smoking prior to service); March 2015 Board Hearing Tr. at p. 28.  In addition, there is substantial and persuasive evidence that the Veteran's level of tobacco use for many years prior to his diagnosis of COPD was about the same as it was at the time of diagnosis and thereafter.  See April 2001 VA Mental Health Outpatient Note ("Smokes cigarettes 1 1/2 ppd for more than 10 years."); July 2007 VA Primary Care Note ("Smoking about 3/4 - 1 ppd"); January 2010 VA Examination ("He smokes 1 pack per day of cigarettes."); see also March 2011 Private Treatment Note ("He smokes somewhere between 1-2 ppd.").  While there are variations in this evidence of smoking frequency, the Board interprets this evidence as indicating that the Veteran's smoking has been at an approximately one and a half pack-a-day level for over 20 years, though with some variation.  In other words, the Veteran's use of tobacco has not increased in, at least, the last 20 years.

The Board acknowledges and has considered that the Veteran and his spouse have, during the pendency of his claim, alleged that his use of tobacco products increased due to anxiety related to his dysthymic disorder and otherwise alleged related to his service-connected disabilities.  See, e.g., March 2015 Board Hearing Tr. at p. 28.  However, the Board finds the more contemporaneous evidence, including statements made to medical providers for the purpose of medical treatment, to be more reliable indicators of the Veteran's actual frequency of use of tobacco products.  See, e.g., Fed.R.Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("recourse to the [Federal Rules of Evidence] is appropriate where they will assist in the articulation of the Board's reasons"); Caluza, 7 Vet. App. at 511-512; Cartright, 2 Vet. App. at 25.

In short, the evidence is against finding that the Veteran's tobacco use has increased since he developed a bilateral hearing disability, since he was diagnosed with dysthymic disorder, or since his tinnitus worsened to the point he complained to a physician and sought service connection for it.

The Board also notes that the February 2011 VA examiner specifically addressed the issue, noted a 38 year history of smoking 1.5 to 2 packs per day, and concluded that the Veteran's dysthymic disorder "did not cause him to use tobacco products after service".  She also opined:  "There is no indication that the veteran's nicotine/tobacco dependence was aggravated beyond normal progression by his service connected dysthymic disorder."  The examiner provided a complete and thorough rationale for the opinion, including that nicotine is very addictive and that the Veteran's smoking was a long standing addiction of very gradual progression.  The Board finds this opinion, particularly in the light of little to no actual worsening of tobacco use, to be persuasive and dispositive.  See Nieves-Rodriguez, 22 Vet. App. at 304.

Because the Board finds based on the available medical evidence that there has been no increased tobacco use over the relevant time period or due to any of his service-connected disabilities, the Veteran's claim of entitlement to service connection for COPD as secondary to increased tobacco use fails.  None of the Veteran's service-connected disabilities have caused the veteran to increase his use of tobacco products after service, so his COPD cannot be due to any alleged increase in tobacco use.  38 C.F.R. § 3.300; VAOPGCPREC 6-2003.

COPD and Dysthymic Disorder

The Board will then consider the Veteran's contention that his service-connected dysthymic disorder (which he tends to refer to as depression) has aggravated his COPD.

First, the February 2011 VA examiner did provide an opinion that addressed the contention.  She opined that:  "The COPD, caused by smoking history/nicotine dependence, was not caused by his SC dysthymic disorder."  While she did not address the medical literature put forward by the Veteran in March 2015 or explain that particular conclusion in detail, the Board finds her opinion adequate and probative.  

The Veteran's private physician offered a nominally positive aggravation opinion.  See March 2011 Private Treatment Note ("Anxiety and depression: - is contributing to the worsening of his emphysema.  Would benefit from more aggressive treatment so that he can quit smoking."; "He smokes somewhere between 1-2 ppd.").  However, the opinion links the psychiatric problems to increased or continued smoking which was the proximate cause of the worsening emphysema.  As already discussed, the Board has determined based on the more persuasive medical evidence, that the Veteran's smoking has not been aggravated beyond its normal progression by his service-connected dysthymic disorder.  In other words, the factual premise of the private physician's opinion has been rejected by the Board and, so, the nexus opinion has no probative value.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value."); see also Nieves-Rodriguez, 22 Vet. App. at 304.

Because the Board assigns no probative value to the March 2011 private opinion, the weight of the competent medical opinions is against the Veteran's claim.  The Veteran sought to counter the VA examiner's opinion through the submission of a number of articles from medical journals that discuss the interactions of COPD and depression.  See, generally, March 2015 submissions.

In making his argument that the legal articles he has submitted establish his claim of entitlement to secondary service connection, the Veteran admirably cites to relevant legal authority, Sacks v. West, 11 Vet.App. 314, 316-17 (1998).  See March 2015 Veteran Statement and Arguments.  His summary of the holding is accurate, if not precise in all details.  The Board disagrees, however, with his application of that holding to these facts.

As the Veteran notes, while information contained within treatises is generally too abstract to prove the nexus element of a service-connection claim, the Court left open the possibility that a treatise might "discuss generic relationships with a degree of certainty" that would allow a finding of "plausible causality based upon objective facts."  Sacks, 11 Vet.App. at 317.  He asserts that the articles he has submitted do have the requisite "degree of certainty" to permit the Board to find in his favor based on those articles.  See March 2015 Veteran Statement and Arguments.  Unfortunately, the Board cannot agree.

The articles that the Veteran submitted are, in fact, general in nature, rather than specific to his medical conditions and their causes.  The articles themselves reinforce this point.  See, e.g.,  "A Review of Etiologies of Depression in COPD", International Journal of COPD, 489 (2007) ( "the relationships between depression, COPD, and smoking are not linear but, rather, interconnected with each element influencing the others to different degrees in any given patient at any given time").  The articles as often identify COPD as a cause of depression as suggest depression worsens COPD.  While the articles support a finding that the conditions may be interrelated and may together produce worse overall outcomes, the articles do not provide probative evidence that this Veteran's COPD is caused or aggravated by his dysthymic disorder (or, more precisely, the portion of his dysthymic disorder due to his aggravating service-connected disabilities).  As in Sacks, the articles establish, at best, general principles and outcomes, but are not sufficiently specific in their facts or certain in their conclusions that this Board may rely solely on them to reach the medical conclusions necessary to decide the Veteran's claim.  Sacks, 11 Vet.App. at 317; Colvin, 1 Vet.App. at 174; see also, e.g., Janet Mauer, M.D., et al., "Anxiety and Depression in COPD", Chest, 43S (October 2008 Supplement) ("...anxiety and depressive symptoms may increase physical disability, morbidity, and health-care utilization...").

The evidence is not in equipoise and, instead, the weight of the evidence is against the Veteran's claim.  Gilbert, 1 Vet. App. at 53-56.  Entitlement to service connection for COPD, emphysema, tobacco disorder, and nicotine dependence, including as secondary to service-connected disabilities, is denied.

XI.  Service Connection for Leukoplakia

The Veteran asserts entitlement to service connection for leukoplakia (also claimed as gingivitis) as secondary to nicotine dependence.  

Under current legal authority, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla.  See 38 C.F.R. § 4.150 (setting forth the schedule of ratings for dental and oral conditions).  Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities, but may be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment.  38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150.  Therefore, the law does not permit service connection for compensation purposes for gingivitis or other similar dental condition.  

Leukoplakia, generally, is a benign oral condition and, so, fits within this prohibition on service connection (for compensation purposes) for dental conditions.  See Dorland's Illustrated Medical Dictionary, 1044 (31st Edition 2007) (stating with respect to oral leukoplakia:  "It is a benign condition but may predispose to development of epidermoid carcinoma.").  To the extent the Veteran is making a claim for gingivitis or for leukoplakia as a dental condition, the claim is denied.  See 38 C.F.R. § 3.381(b)  ("Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities").

In addition, assuming the Veteran is alleging his leukoplakia is otherwise disabling, the Veteran has made clear that the claim is based solely on the theory that the condition was caused by increased tobacco use.  See March 2015 Board Hearing Tr. at pp. 30-31 ("Q. [Y]ou're saying that the [leukoplakia] problems are because of the, the smoking, the excessive smoking that you've done? ... A. Yes, ma'am."); see also March 2011 Notice of Disagreement.  Direct service connection has no support in the allegations or in the record.

As already explained above, the Veteran's tobacco use is not service-connected and has not been caused (or increased) by any service-connected disability.  See, e.g., 38 C.F.R. § 3.300.  Consequently, service connection for leukoplakia as secondary to tobacco use is not legally viable.  See 38 C.F.R. § 3.310 (a claim for secondary service connection requires that a service-connected disability either caused or aggravated the claimed condition); Buckley v. West, 12 Vet. App. 76, 84 (1998) (holding that the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (noting secondary service connection may also be warranted for a non-service-connected disability when that disability is aggravated by a service-connected disability).

The evidence is not in equipoise and, instead, the weight of the evidence is against the Veteran's claim.  Gilbert, 1 Vet. App. at 53-56.  Accordingly, entitlement to service connection for leukoplakia (also claimed as gingivitis) as secondary to nicotine dependence is denied.



XII.  Service Connection for a Sleep Disorder

The record establishes that the Veteran does have a sleep impairment (insomnia).  He does not claim and the record does not disclose an underlying diagnosable physical condition, such as sleep apnea.  Rather, the Veteran claims that he has trouble sleeping due to some combination of his psychiatric disabilities and his COPD.  See March 2015 Board Hearing Tr. at p. 31. 

As discussed above in more detail, to establish secondary service connection, the evidence must demonstrate that a nonservice-connected disability (here a sleep disorder) is either proximately due to or aggravated by a service-connected disability (here, allegedly COPD and/or psychiatric disabilities).  Buckley v. West, 12 Vet. App. 76, 84 (1998); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

The Veteran's COPD is not service-connected, so secondary service connection based on COPD as the service-connected disability is not a viable theory.

The Veteran's only other theory is that his service-connected psychiatric disability (dysthymic disorder) has affected his sleep.  The Veteran has not explained the alleged causal relationship beyond his contention that his depression and anxiety make it difficult for him to sleep.  See March 2015 Board Hearing Tr. at pp. 31-32; March 2015 Veteran Statement and Argument (requesting a sleep study based on prescription for sleep mediation).  The Board has discussed the Veteran's symptoms, as found by VA examiners, which are attributable to the Veteran's service-connected dysthymic disorder.  

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  While the assignment of separate evaluations for separate and distinct symptomatology is not precluded, it is only permitted where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also VA Gen. Coun. Prec. 9-2004 (Sep. 17, 2004) ("[T]he key consideration in determining whether rating under more than one diagnostic code is in order is whether the ratings under different diagnostic codes would be based on the same manifestation of disability or whether none of the symptomatology upon which the separate ratings would be based is duplicative or overlapping.").

To the extent the Veteran is seeking another disability rating under a separate diagnosis for symptoms of his service-connected dysthymic disorder, the claim is denied.

To the extent the Veteran's claim could be construed as disagreement with the VA examiner's findings regarding symptoms or as a claim for a separately diagnosable condition, the Board rejects the claim because it has already found the VA examiners' opinions to be factually sound, well-supported, and convincingly reasoned.  Nieves-Rodriguez, 22 Vet. App. at 304.

The Board finds that the greater weight of the evidence is against finding that the Veteran has a sleep disorder that has been caused or aggravated by his service-connected disabilities, other than sleep disturbances attributable to his service-connected dysthymic disorder which symptoms have been considered in assigning a disability rating for that condition.

The Veteran has not argued that his sleep disorder is etiologically linked to an in-service disease or injury and the Board finds the evidence is against any such claim.

The evidence is not in equipoise and, instead, the weight of the evidence is against the Veteran's claim.  Gilbert, 1 Vet. App. at 53-56.  Accordingly, entitlement to service connection for a sleep disorder is denied.

XIII.  Entitlement to an Extraschedular Rating

Consideration of referral for an extraschedular rating requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. 

The evidence of this case does not show an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate.  Thun v. Peake, 22 Vet. App. 111, 118-19 (2008).  A comparison of the level of severity and symptomatology of each of the Veteran's disabilities addressed above (in the context of claims for higher ratings) with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology.  

With respect to migraine headaches, the VA examinations expressly addressed each of the schedular criteria and the assigned schedular rating is based on symptoms contemplated by the schedular criteria (e.g. frequency, severity, and duration of migraine headaches).  The Veteran has complained that he has significant pain with his headaches, that he must lie down for several hours or more when he has a headache, and that the headaches occurred roughly weekly during the period under consideration.  As discussed above, these symptoms and their associated functional impacts were all considered in assigning the 30 percent rating for migraine headaches.  A higher schedular rating was available, but the Board determined the criteria for that rating had not been met.  The Board has considered all of the Veteran's symptoms in assigning a schedular evaluation and those symptoms are expressly contemplated by the relevant schedular criteria.

With respect to dysthymic disorder (which is service-connected via aggravation and is rated accordingly), the two VA examiners provided thorough examinations in which they detailed the Veteran's symptomatology (e.g. depressed mood) and functional limitations.   The assigned schedular rating is based on symptoms and functional limitations expressly contemplated by the schedular criteria.  The Veteran has complained that his depressive symptoms are at least moderate, rather than mild, but that and other symptoms as well as the associated functional impacts were all considered in assigning the 10 percent rating for dysthymic disorder.  A higher schedular rating was available, but the Board determined the criteria for that rating had not been met.  The Board has considered all of the Veteran's symptoms in assigning a schedular evaluation and those symptoms are expressly contemplated by the relevant schedular criteria.

With respect to perforated tympanic membranes, the VA examiners provided thorough examinations in which they detailed the Veteran's symptomatology (e.g. scarring, perforation).   The assigned schedular rating is based on symptoms expressly contemplated by the schedular criteria.  The Veteran has complained that the scars on his tympanic membranes are painful and warrant a rating by analogy.  The Board fully considered the claim, but found that the evidence did not support a rating by analogy and that the schedular criteria for perforation of the tympanic membranes reasonably described his disability level and symptomatology associated with that disability.  A higher schedular rating was not available under the assigned diagnostic code, but, as noted, the Board considered the possibility of rating the condition under other diagnostic codes and determined a rating by analogy was not warranted.  The Board has considered all of the Veteran's symptoms in assigning a schedular evaluation and those symptoms are reasonably described by the relevant schedular criteria.

The Veteran is also service-connected for bilateral hearing loss (30 percent), tinnitus (10 percent), and ear infections with bilateral tympanic membranes and Eustachian tube dysfunction (left ear) (noncompensable).

The Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case.  Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. Aug. 6, 2014).  In making this determination, the Board notes that the Veteran's combined schedular rating is now 70 percent.  The functional impairments of the Veteran's service-connected disabilities (most of which relate to his ears and/or hearing) overlap to a significant extent and are adequately compensated with the currently assigned schedular ratings.

Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for consideration of an extraschedular rating for his service-connected left ankle disability is not warranted.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 118-19.

XIV.  TDIU

The Veteran alleges that his service-connected disabilities render him unable to obtain or maintain gainful employment.  See, e.g., March 2015 Board Hearing Tr. at pp. 34-39.

VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.

Under the applicable regulations, TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the obtaining and maintaining of substantially gainful employment.  Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU.  If there are two or more service connected disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

The Veteran is in receipt of service connection for migraines assigned a 50 percent rating, bilateral hearing loss assigned a 30 percent rating, tinnitus assigned a 10 percent rating, dysthymic disorder assigned a 10 percent rating, ear infections with bilateral perforated tympanic membranes and left ear Eustachian tube dysfunction assigned a noncompensable rating, and bilateral perforated tympanic membranes also assigned a noncompensable rating.  These service-connected disabilities combine to a disability rating of 70 percent, so he meets the criteria for consideration of TDIU on a schedular basis.  

However, prior to October 2011, his combined rating was 60 percent with no single disability rated higher than 30 percent.  Therefore, he did not meet the criteria for schedular TDIU prior to October 2011.  

If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis.  It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  The rating boards are required to submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  Id.

In determining unemployability for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013).  In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough.  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)).  

In evaluating the evidence of employability, the Board cannot take the Veteran's age into consideration.  See 38 C.F.R. § 4.19 ("... unemployability, in service-connected claims, associated with advancing age..., may not be used as a basis for a total disability rating.").  While his advanced age may make it difficult to actually find employment, the Board may not give, and has not given, any consideration to his age in determining whether he meets the criteria for TDIU.  

Importantly, disability ratings are based on the average impairment in earning capacity resulting from the disability.  38 U.S.C.A. § 1155; see also 38 C.F.R. § 4.1.  For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect circumstances which place that veteran's case in a different category than other veterans with an equal rating of disability.  Van Hoose, 4 Vet. App at 363.

The Veteran's civilian employment has been, almost exclusively, as a mail carrier and clerk.  He last worked in or around 1998.  See March 2015 Board Hearing Tr. at p. 34.

In asserting that he is entitled to TDIU, the Veteran has primarily relied on the fact that his migraine headaches frequently render him unable to work, resulting in large amounts of missed time from work.  See March 2015 Board Hearing Tr. at pp. 34-35.  He also contends that his dysthymic disorder is a factor and that his hearing disabilities limit the types of work he can do.  Id. at pp. 34-39.

An important factual aspect of this claim is that the Veteran would have been able to continue in his position as a mail carrier but for a nonservice-connected knee disability.  See, e.g., id. at 37 ("There's no way I could have did letter carrier with my knee.  I have, I blew out my right knee, two times.").  Thereafter, the Veteran sought to be reassigned to other duties, but his service-connected disabilities (principally bilateral hearing loss and tinnitus at that time) placed limitations on his ability to work in noisy environments.  In addition, he was deemed unable to work evening hours, which also contributed to the inability to find alternate duties.  He is no longer able to work in his former position and his former employer was unable to find an alternative duty assignment to accommodate his disabilities, so he lost his job with that employer.  Id. at 35; October 2010 Notice of Disagreement.  

The testimony at the Board hearing revealed another limiting factor contributing to the Veteran's inability to work for his former employer is his use of oxygen.  See March 2015 Board Hearing Tr. at p. 39 ("he's on oxygen.  They don't allow that [at his former employer].  You're not allowed to bring that in there.").  His use of oxygen is not related to any service-connected condition, but is required to treat his nonservice-connected respiratory conditions, particularly COPD.

The Veteran has attempted, on at least one occasion, to obtain and maintain employment subsequent to release from that long-held position.  Specifically, he worked at a rental car agency for a short time in 2000.  The record contains conflicting accounts of the reason he left that position.  During a VA examination, he indicated that he left his position because he "couldn't get along with the twenty-somethings" who were trying to tell him what to do.  See January 2010 VA Examination.  In his Board hearing, however, he attributed the short duration of that employment to missed time due to his migraine headaches.  See March 2015 Board Hearing Tr. at p. 38.

The Board acknowledges the Veteran's assertion that, due to his almost exclusive employment in one particular career field, he is not well-suited to other career fields.  See March 2015 Board Hearing Tr. at p. 35.  However, his Board hearing revealed that he did have some transferrable skills having worked as a clerk and, as discussed above, his more recent employment also indicates portable skills.  While the Board acknowledges the Veteran's discomfort working in a new field, the determinative question for purposes of TDIU is whether the Veteran's level of disability, given his education, training, and experience, renders it impossible for the average person to obtain or retain substantially gainful employment of some type.  Van Hoose, 4 Vet. App. at 363.

There are a number of medical opinions of record with respect to the impact his service-connected disabilities have on his employability.

With respect to hearing loss, the January 2010 VA examiner did not offer his own opinion regarding the occupational impairments caused by the Veteran's hearing loss.  The examination report specifically requested that the examiner:  "Document the Veteran's response without opining on the relationship between the functional effects and the level of impairment (audiogram) or otherwise characterizing the response."  Consistent with those instructions, the examiner recorded the Veteran's assertion that he could not work at his former employer because of his hearing loss and consequent inability to tolerate loud noises.  This statement is not entirely accurate.

As discussed above, the Veteran was unable to continue his employment as a letter carrier because of a nonservice-connected knee disability.  See, e.g., September 2002 VA Examination (documenting Veteran's assertion that his retirement was due "to a disability of the right knee where he has had two surgical procedures performed."); March 2015 Board Hearing Tr. at p. 37 (same); October 2008 VA Examination ("He said that he sustained a knee injury on the job in December 1998, leaving him unable to carry out a postal route.  He took a disability retirement.").  However, he was unable to be reassigned to other duties partly because of his service-connected disabilities, including hearing loss, but also partly due to nonservice-connected disabilities.

The January 2010 VA examiner also documented the Veteran's acknowledgement that his tinnitus had no impact on the Veteran's ability to work.  But see September 1998 VA Examination (documenting Veteran's assertion that his tinnitus "has a severe and distracting effect on his life" and, at its worst, causes "difficulty concentrating").

A February 2010 Addendum contains a medical opinion regarding the functional impact of the Veteran's hearing loss.  The VA audiologist opined:  "The Veteran's hearing loss does not preclude him from gainful employment, however, he could not be employed in a job that would require acute hearing."  See also February 2010 VA Examination Addendum (ear disease) ("Pt can work with current level of service connected disability at certain jobs that do not require 100% hearing levels.").  

The Veteran's service-connected dysthymic disorder (which is mild and only partially attributable to his service-connected disabilities via aggravation) has very little effect on his occupational functioning.  The January 2010 VA Examiner assigned a GAF of 65, indicating only mild impairments.  The examiner provided a February 2010 addendum opinion in which he opined that the Veteran was not unemployable because of his service-connected dysthymic disorder.  See also October 2008 VA Examination (assigning a GAF of 65 and noting "inability to adapt to hearing aid amplification" due to "inflexible coping style" which is characteristic of his nonservice-connected "underlying personality rather than an Axis I disorder"); see also September 2009 VA Examination Addendum (opinion that the Veteran has "mild impairment of psychological functioning" and is fully independent with activities of daily living).

The January 2010 VA examiner (migraines) did not provide an opinion regarding employability in the initial report on examination, but noted that the Veteran worked "through 1998 even though he had these headaches."  In a February 2010 addendum, the VA examiner did provide an employability opinion:

The patient would be expected to be able to work normally between headaches episodes otherwise, he is unlikely to be able to accomplish anything of a useful nature during a full blown migrainous attack.

He is more likely than not able to work with any headache which is less intense or debilitating than his typical migrainous episodes though it may be at a somewhat lower than expected level of productivity.

February 2010 VA Examination Addendum.  The Board finds the VA examiner's opinion to be well-supported by the medical evidence and convincingly reasoned.  Nieves-Rodriguez, 22 Vet. App. at 304.  

The October 2011 VA examiner (migraines) indicated that the Veteran "went on disability from job as letter carrier...in 1998 primarily due to hearing loss and recurrent migraines triggered by loud noise in distribution center."  This, as discussed above, is not accurate.  Nonservice-connected disabilities were the predominant factor in the Veteran being unable to continue with his former employer.  His service-connected disabilities limited his ability to be reassigned to other duties, but the evidence establishes that, but for his nonservice-connected disabilities, he would have been able to continue in his letter carrier position at that time.  To the extent the October 2011 VA examiner's statement incorporates his own medical judgment, the Board gives it very little probative weight because it is based on an incomplete, also inaccurate, summation of the circumstances leading to the Veteran's retirement and fails to explain why the examiner concludes (assuming he does) that the migraines prevent employment other than referring that past loss of employment.  Nieves-Rodriguez, 22 Vet. App. at 304; Owens, 7 Vet. App. at 433.

The Veteran's private physician provided a July 2008 opinion letter in connection with a worker's compensation claim.  In that letter, the private physician noted that the Veteran's "gross knee instability could place him at risk of future injury and any employer at risk and this is why I have given him significant work restrictions."  The private physician also indicated that his hearing loss limited the Veteran to work environments that "do not have noise exposure above conversational level" and that his migraines are exacerbated when he is exposed to "industrial noise levels".  The private physician offered an opinion that the Veteran suffered from obsessive compulsive disorder and clinical depression which preclude him from working the afternoon or evening shifts.  However, as discussed above, the more convincing evidence is that the Veteran does not have either obsessive compulsive disorder or clinical depression and his current psychiatric disability has only mild effects on his functioning.  See, e.g., January 2010 VA Examination; Owens, 7 Vet. App. at 433.  In addition, the private physician noted that multiple other nonservice-connected conditions adversely impacted the Veteran's ability to work, including a toe condition, a skin condition, and urinary incontinence.

A January 2009 Department of Labor Progress Report, as highlighted by the Veteran, contains an opinion that the Veteran is "not employable."  However, that opinion is based on a number of factors, including nonservice-connected disabilities such as the knee disability, a toe disability, skin disability, and incontinence, and relies heavily on the July 2008 private opinion.  The Board assigns this report no probative weight because, to the extent it contains employability conclusions, they are either restatements of the July 2008 private opinion or are general statements which fail to differentiate the occupational impact of service-connected disabilities from the impact of nonservice-connected disabilities.

TDIU Analysis

The Board finds that the Veteran's actual unemployment is due to nonservice-connected disabilities, such as the right knee disability and COPD which result in severe limitations on the type of work the Veteran can.  The Board may not award TDIU based on nonservice-connected disabilities and the impairments resulting from those disabilities.  See 38 C.F.R. § 4.15.

As discussed above, the percentage ratings in the rating schedule "represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations."  38 C.F.R. § 4.1.  The combined 70 percent rating represents the best estimate of the impairment to earning capacity caused by the Veteran's service-connected disabilities.  The greater weight of the evidence is against finding that the Veteran's service-connected disabilities cause greater occupational impairment than represented by his combined schedular rating.

For example, while the Veteran's hearing precludes employment in certain occupations, his hearing would not prevent him from working as a letter carrier, as he did for many decades previously.  Likewise, the evidence is against finding that his tinnitus, dysthymic disorder, or other ear conditions would prevent him from working as a letter carrier.  The condition that most significantly limits his employability is his service-connected migraine disability.  However, the Veteran is rated as 50 percent disabled for that condition which accounts for the fact that the condition is likely to result in a significant amount of lost time from work.  The Board finds that, although the Veteran would undoubtedly miss more time from work due to his migraines than the average employee who did not have a migraine disorder, the condition is not so severe that it prevents him from obtaining and maintaining gainful employment.  In making this finding, the Board finds persuasive the January 2010 VA examiner's opinion and February 2010 addendum opinion.

The Board recognizes that the migraine condition has worsened since those examinations and opinions were provided, but finds that the disabling effects are not worse than reflected by the schedular rating which explicitly takes into account and compensates for the occupational impairments the condition causes.  

The Board also assigns little probative weight to the Veteran's own assertions that his migraines prevent employment, partly because the Veteran's allegations regarding which disability caused him to become unemployed has varied considerably over time and because the Veteran has acknowledged on several occasions the decisive role his nonservice-connected disabilities played in his loss of his last full-time, long-term employment and the role they play in his ability to return to that employer.  See, e.g., March 2015 Board Hearing Transcript (discussing knee disabilities and need for oxygen due to COPD).

The Board also notes that his difficulties in obtaining and maintaining employment are due in significant part to his personality rather than due to any service-connected condition.  See January 2010 VA Examination (discussing reason for leaving employment at a car rental agency).  To the extent the Veteran has alleged that he left that employment due to migraines, the Board finds more credible the employment history related by the VA examiner which includes a direct quote from the Veteran.

Although the Board sympathizes with the Veteran's current difficulties obtaining and maintaining employment, the evidence is against finding that his inability to obtain and maintain employment is due to his service-connected disabilities.  In making this finding, the Board has considered the Veteran's educational history and his learning difficulties, as well as the report of the vocational rehabilitation specialist.  The evidence indicates, however, that the Veteran would be able to work in his previous position but for his nonservice-connected physical disabilities.  Similarly, the Board finds that the Veteran has not been rendered unable to secure or follow other substantially gainful occupations (e.g. clerk) because of his service-connected disabilities.  In making these determinations, the Board relies, in part, on its finding that the Veteran's disabilities do not "place [his] case in a different category than other veterans with an equal rating of disability."  Van Hoose, 4 Vet. App at 363.

The symptoms of the Veteran's service-connected disabilities are not of sufficient severity to produce unemployability as contemplated by the relevant regulations during any part of the period on appeal.  The evidence is not in equipoise and, therefore, the Veteran is not entitled to the benefit of the doubt on this issue.  Gilbert, 1 Vet. App. at 53-56.  The Veteran did not meet the criteria for referral for consideration of extraschedular TDIU for the period prior to October 14, 2011, and he does not meet the criteria for entitlement to schedular TDIU at any point thereafter.  Accordingly, the Board will deny the claim of entitlement to TDIU.

As discussed in the Remand section below, the Veteran has a pending appeal on the issue of entitlement to an increased rating for service-connected hearing loss.  His claim of entitlement to TDIU extends back many years and the matter is ripe for a determination on the merits at this time.  However, the RO may readjudicate, based on any new evidence developed in connection with the remanded claim, the Veteran's entitlement to TDIU for the more recent period that will be under consideration in connection with that claim.

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ORDER

Entitlement to an effective date earlier than July 15, 2008, for the grant of service connection for migraine headaches is denied.

The motion alleging CUE in the January 2003 decision denying entitlement to service connection for migraine headaches is denied.

Entitlement to a rating in excess of 30 percent prior to October 14, 2011, for migraine headaches is denied.

Entitlement to an initial disability rating in excess of 10 percent for dysthymic disorder is denied.

Entitlement to a compensable rating for perforated ear drums is denied.

Entitlement to service connection for dermatitis, including as secondary to a service-connected condition, is denied.

Entitlement to service connection for a personality disorder with obsessive compulsive traits, including as secondary to a service-connected condition, is denied.

Entitlement to service connection for COPD, emphysema, tobacco disorder, and nicotine dependence, including as secondary to a service-connected condition, is denied.

Entitlement to service connection for leukoplakia and gingivitis, including as secondary to a service-connected condition, is denied.

Entitlement to service connection for a sleep disorder, including as secondary to a service-connected condition, is denied.

Entitlement to TDIU is denied.

REMAND

As explained in the Introduction, the RO issued a November 2014 rating decision denying the claim of entitlement to a disability rating in excess of 30 percent for service-connected bilateral hearing loss and the Veteran initiated an appeal by timely filing a NOD.  The RO has not issued a statement of the case (SOC), therefore the Board must remand those matters for the issuance of an SOC.  See 38 C.F.R. § 19.9(c) (2014), codifying Manlincon v. West, 12 Vet. App. 238 (1999).  The Veteran should understand that, after the RO issues an SOC, he must timely file a substantive appeal (e.g. VA Form 9) in order to perfect his appeal and permit a decision on the merits by the Board with respect to that claim.  See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b).


Accordingly, the case is REMANDED for the following action:

After completing any development deemed necessary, issue a statement of the case with respect to the claim of entitlement to a disability rating in excess of 30 percent for service-connected bilateral hearing loss.  

If the benefits sought on appeal with respect to that claim are not granted to the appellant's satisfaction, he and his representative should be provided an appropriate period of time for response and the RO must advise the Veteran and his representative, in writing, of the requirements for perfection of his appeal of these issues.  If a timely substantive appeal is not filed, these claims should not be certified to the Board.  If appealed, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate.

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 2014).




______________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs