Citation Nr: 1801129 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-23 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for degenerative arthritis with disc syndrome, thoraco-lumbar spine. 2. Entitlement to an initial disability rating in excess of 30 percent for bilateral hearing loss disability. 3. Entitlement to an initial disability rating in excess of 10 percent for tinnitus. 4. Entitlement to a compensable disability rating for postoperative right inguinal hernia. 5. Entitlement to service connection for a chronic acquired psychiatric disability, claimed as major depressive disorder and anxiety. 6. Entitlement to service connection for a chronic disability of the cervical spine. 7. Entitlement to service connection for sciatic neuropathy, right lower extremity. 8. Entitlement to service connection for a chronic mental disability for the purpose of establishing eligibility to medical treatment under 38 U.S.C. § 1702. 9. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant (Veteran) represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty between August 1962 and August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In December 2016, the Veteran filed a notice of disagreement (NOD) against a rating decision issued in November 2016 addressing a claim of service connection for right knee disability and a claim of entitlement to a TDIU. The AOJ has not responded with a Statement of the Case (SOC). As VA has acknowledged receipt of the NOD, however, a remand of the issues pursuant to Manlincon v. West, 12 Vet. App. 238 (1999) is not necessary. Nonetheless, the Board will assume jurisdiction over the TDIU claim inasmuch as the Veteran has asserted that the service-connected disabilities addressed here cause him to be unemployable. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a TDIU claim is part and parcel of an increased rating claim, when such a claim is raised by the record). The claims regarding tinnitus and right lower extremity neuropathy will be decided below. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). The issue of entitlement to service connection for left lower extremity radiculopathy has been raised by a November 2016 VA examination report addressing lumbar spine disability. The issue has not been adjudicated by the 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) (2017). FINDINGS OF FACT 1. Right lower extremity radiculopathy is due to service-connected lumbar spine disability. 2. Throughout the appeal period, tinnitus has been assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. Right lower extremity radiculopathy is secondary to service-connected lumbar spine disability. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 2. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for service-connected tinnitus. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Right Lower Extremity Radiculopathy The Veteran claims that he developed lower extremity neuropathy as the result of service-connected lower spine disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). For the following reasons, a service connection finding is warranted for right lower extremity radiculopathy. First, the medical evidence establishes that the Veteran has right lower extremity radiculopathy. This is evidenced in the November 2016 VA report. Second, service connection has been in effect for lumbar spine disability since January 2012. Third, the only medical opinions of record addressing this claim support the Veteran. In a December 2011 letter, the Veteran's chiropractor stated that right lower extremity radiculopathy was due to service-connected lumbar spine disability. In the November 2016 VA report, the examiner attributed the right lower extremity neuropathy to lumbar spine disability. See 38 C.F.R. § 3.310. As the VA examiner indicated a review of the claims file and an interview and examination of the Veteran, the report is of probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). There is no competent evidence which weighs against the claim. Based on the foregoing, a service connection finding is warranted for this claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. II. Higher Rating Claim for Tinnitus Since his original claim of service connection on January 3, 2012, the Veteran has been rated as 10 percent disabled due to tinnitus. He argues that a higher initial rating should be assigned. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The RO rated the Veteran's tinnitus under DC 6260 of 38 C.F.R. § 4.87. This DC provides a maximum rating of 10 percent. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the U.S. Court of Appeals for Veterans Claims (CAVC) held that earlier versions of DC 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the CAVC erred in not deferring to VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and DC 6260, which limit a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for the disorder. 38 C.F.R. § 4.87, Diagnostic Code 6260. As there is no legal basis upon which to award a higher schedular evaluation for tinnitus (or a separate evaluation for each ear), the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Service connection for right lower extremity radiculopathy is granted. Entitlement to a rating in excess of 10 percent for tinnitus is denied. REMAND A remand is necessary for the claims remaining on appeal - increased rating claims for lower back and hernia disorders and for bilateral hearing loss disability; service connection claims for neck and psychiatric disability; the claim regarding entitlement under 38 U.S.C. § 1702; and the claim regarding a TDIU. With regard to the hearing loss claim, the Veteran indicated in May 2016 that his disability had worsened since his most recent VA examination in July 2012, over five years ago. VA treatment records dated until as recent as September 2016 indicate problems with his hearing aids, moreover. He should be provided with a new examination. See Green v. Derwinski, 1 Vet. App. 121 (1991). With regard to the back and hernia disorders, the Veteran underwent VA examinations in October 2016, apparently in response to his May 2016 statement indicating a worsening of service-connected disabilities. The reports of these examinations were included in the claims file after the most recent readjudication of the claims in the May 2016 SOC and before the Board's receipt of this case in November 2017. The claims should again be readjudicated. See 38 C.F.R. §§ 19.31, 20.1304(c) (2017). With regard to the service connection claims for neck and psychiatric disorders, the Veteran should be provided with VA examinations into his claims. The Veteran has asserted that incidents during service relate to these disorders, which are diagnosed in private reports of record dated in December 2011 (included in the record in January 2012). Further, certain STRs note the Veteran's report that he had experienced painful joints and sleep problems during service. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The claims regarding entitlement to a TDIU and to a rating under 38 U.S.C. § 1702 must be remanded as well because each is inextricably intertwined with the remanded claims. See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. Include in the record any outstanding VA treatment records, the most recent of which are dated in September 2016. All records/responses received must be associated with the electronic claims file. 2. Schedule a VA examination to determine the current severity of the Veteran's service-connected bilateral hearing loss disability. Any and all indicated studies deemed necessary by the examiner should be accomplished. 3. Schedule the Veteran for examinations to determine the nature and etiology of any neck or psychiatric disability. The examiner should review the claims folder, and then respond to the following questions. (a) What neck and/or psychiatric disabilities has the Veteran been diagnosed with since January 2012? In answering (a), please discuss the private and VA medical evidence of record indicating that the Veteran has neck and psychiatric disabilities. (b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed neck or psychiatric disability is related to a disease, event, or injury during service? In answering (b), please consider and discuss the STRs, which note the Veteran's reports of joint pains, sleep problems, and excessive drinking, but which also indicate, in the July 1969 discharge report of medical examination, a normal neck and no psychiatric problems. Please also consider and discuss the December 2011 opinion from the Veteran's chiropractor who relates neck disability to service, and the December 2011 private report from a psychologist who indicates a relationship between psychiatric disability and service. (c) If the answer to (b) is negative, is it at least as likely as not that any diagnosed neck or psychiatric disability is due to or caused by service-connected disability (e.g., back disability)? (d) If the responses to (b) and (c) are negative, is it at least as likely as not that any diagnosed neck or psychiatric disability has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder(s). Please explain in detail any opinion provided. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After the completion of any action deemed appropriate in addition to that requested above, the claims should be readjudicated. All evidence received since the May 2016 SOC should be considered. If any benefit sought remains denied, the Veteran and his representative should be provided with a Supplemental SOC. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). ______________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs