Citation Nr: 1753564 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 13-36 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected tinnitus. 2. Entitlement to service connection for an acquired psychiatric disorder (to include major depressive disorder (MDD) and posttraumatic stress disorder (PTSD)). 3. Entitlement to an initial rating in excess of 10 percent for a left knee condition. 4. Entitlement to service connection for head injury, claimed as traumatic brain injury (TBI). 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel INTRODUCTION Veteran served honorably in the United States Army from June 1978 to February 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision and a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issues of entitlement to an initial rating in excess of 10 percent for a left knee condition, entitlement to service connection for head injury, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The 10 percent rating currently in effect for tinnitus, left ear, is the maximum schedular rating and the Veteran's tinnitus is not exceptional or unusual. 2. The Veteran has an acquired psychiatric disorder which is etiologically related to service. CONCLUSIONS OF LAW 1. There is no legal basis for the assignment of a schedular rating higher than 10 percent for the Veteran's tinnitus. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). 2. Applying reasonable doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disability has been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.130 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating - Tinnitus The Veteran asserts that he is entitled to an increased initial rating for service-connected tinnitus currently evaluated as 10 percent disabling. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two 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. Tinnitus is evaluated under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. This diagnostic code was revised effective June 13, 2003. The revisions were intended to codify VA's longstanding practice of assigning a single 10 percent evaluation for recurrent tinnitus, whether the sound is perceived as being in one ear or both ears, or in the head. See Schedule for Rating Disabilities: Evaluation of Tinnitus, 68 Fed. Reg. 25,822 (May 14, 2003). This diagnostic code has not changed and continues to stipulate that only a single evaluation for recurrent tinnitus will be assigned-whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, Note 2 (2017); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (affirming VA's longstanding interpretation of DC 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral). Thus, a schedular rating in excess of 10 percent is unavailable under the DC. Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring a referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2017); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2017); Thun, 22 Vet. App. at 116. The schedular rating in this case is not inadequate. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability. In short, there is nothing exceptional or unusual about the Veteran's disability because the rating criteria reasonably describe his disability level and symptomatology as to this disorder, by itself and/or in association with other service-connected disability. Thun, 22 Vet. App. at 115. With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the evidence of record does not show that his disability has caused him to miss work, or that it has resulted in any post-service surgery or hospitalization during the time period on appeal. There are no other factors of record shown to warrant a referral. The Board finds, therefore, that the Veteran's service-connected disability is not shown to have resulted in marked interference with his employment or frequent periods of hospitalization, nor are other factors of record warranting a referral. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. Finally, a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). There is no showing that this holding is pertinent to the instant case. This is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for any additional disability that can be attributed only to the combined effect of multiple conditions insofar as they impact the disability picture of the disability presently on appeal. See Yancy, 27 Vet. App. at 495 (clarifying that, "although Johnson requires the Board, in certain cases, to discuss the collective impact of a claimant's service-connected disabilities, it does not alter the Board's jurisdiction over individual schedular or extraschedular ratings.") Consequently, on this record, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1) for this disability. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2014 & Supp. 2015); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Service Connection - Acquired Psychiatric Disorder Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link, or nexus, between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303 (2017). The Veteran contends that his acquired psychiatric disability is related to his service. See March 2011 Statement in Support of Claim. With regard to a current disability, the Veteran has been diagnosed with an acquired psychiatric disability. In June 2017 a clinical psychologist diagnosed the Veteran with MDD. Thus, the first element of service connection is met. Davidson, supra. With regard to an in-service incurrence, the Veteran contends that his MDD began in service due to verbal and physical abuse by other servicemen and offices which lead to his altercations with fellow service men and officers. The Board finds the Veteran competent and credible as to his report of an in-service incurrence as the record supports his contention. Military personnel records (MPRs) in March 1980 note that the Veteran struck a noncommissioned officer and in October 1984 note that the Veteran had assaulted a fellow serviceman. Thus, the second element of service connection is met. See id. With regard to nexus, the June 2017 clinical psychologist opined that the Veteran's depression was more likely than not due to his service. While the record contains a negative nexus opinion from June 2011, the examiner did not provide any reasons as to why the Veteran's acquired psychiatric disorder was as likely as not related to his military service. The Board gives the June 2011 opinion little probative value. In light of the facts noted above-to include the Veteran's competent, credible assertions-and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial rating in excess of 10 percent for service-connected tinnitus is denied. Entitlement to service connection for an acquired psychiatric disorder is granted. REMAND Upon review of the record, the Board finds that the remaining issues must be remanded. The Board sincerely regrets the additional delay caused by this remand, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c)(2). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158 (2016). The final sentence of § 4.59 reads "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The knee examination on file does not meet this requirement. The examination conducted on remand should include all necessary testing. Accordingly, the Board finds a remand is warranted for further evidentiary development. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Additionally, VA has conducted a special review of traumatic brain injury (TBI) examinations completed between 2007 and 2015 in support of disability compensation claims for TBI. This review revealed a number of initial TBI examinations that were not conducted by a physiatrist, psychiatrist, neurologist, or neurosurgeon as required by VA's Adjudication Procedures Manual. See M21-1, III.iv.3.D.2.j. As a result, in May 2016, the Secretary granted equitable relief that permits VA to provide new initial TBI examinations to impacted claimants. This appeal includes a TBI issue that is covered by the Secretary's grant of equitable relief. In addition, the Veteran has requested reprocessing of this appeal under VA's special TBI review. See November 2016 correspondence. Accordingly, the Board is remanding the case in order to schedule the Veteran for a new examination. See 38 U.S.C.A. § 7107(f)(2) (2017). With regard to the TDIU claim, the above grant of service connection may affect the resolution of this claim. The issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). The RO must first implement the Board's above grant of service connection, including assigning a disability rating and effective date before readjudicating the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records. 2. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran's service-connected left knee condition. The claims file should be made available to the examiner for review in connection with the examination. The examiner should provide findings as to the range of motion of the left knee, including flexion and extension. Additionally, the examiner must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the left knee is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also comment on the impact of the Veteran's left knee condition on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 3. Thereafter, schedule the Veteran for a TBI examination to be conducted by one of the four designated specialists (physiatrist, psychiatrist, neurologist, or neurosurgeon to determine the nature and etiology of the Veteran's head injury, claimed as TBI. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: * Is it at least as likely as not (probability of 50 percent or more) that the Veteran has a current head injury, claimed as TBI, which is related to service? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran's lay statements of sustaining a head injury while playing football during his service. The examiner should also comment on the impact of the Veteran's head injury on his ability to work. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. After completing the above action and any other development that may be indicated by any response received as a consequence of the action taken in the paragraphs above, the claims for service connection must be readjudicated. Thereafter, and following the implementation of the Board's grants of service connection herein, the claim for TDIU, including on an extraschedular basis, should be readjudicated. If any of the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran 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). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs