Citation Nr: 1802192	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  17-64 145	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability. 

2.  Entitlement to a rating in excess of 10 percent disabling for service-connected tinnitus. 

3.  Entitlement to a rating in excess of 10 percent disabling prior to May 16, 2012, and in excess of 30 percent disabling for service-connected depressive neurosis.

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


ATTORNEY FOR THE BOARD

J. Unger, Associate Counsel


INTRODUCTION

The Veteran had active duty service from June 1953 to October 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.

In a July 2014 rating decision, the RO increased the Veteran's rating for service-connected depressive neurosis from 10 percent disabling to 30 percent disabling effective May 16, 2012.  However, as the grant did not represent a total grant of benefits sought on appeal, the claim for increase remains on appeal.  AB v. Brown, 6 Vet. App. 35 (1993).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2014).

The issues of entitlement to service connection for bilateral hearing loss, entitlement to an increased rating for service connected depressive neurosis, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

For the entire appeal period, the Veteran is in receipt of a 10 percent rating, the schedular maximum under Diagnostic Code 6260, for his tinnitus.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for tinnitus have not been met.  38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.87, Diagnostic Code 6260 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION

The Board notes that the Veteran's claim for an increased rating for tinnitus will be decided based on law and not the facts of this case.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  VA's General Counsel held that the notice and assistance requirements of the VCAA are not applicable where there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit.  General Counsel reasoned that there was no reasonable possibility that such a claim could be substantiated.  VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004).

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's service-connected tinnitus is currently assigned a 10 percent rating under 38 C.F.R. § 4.87, Diagnostic Code 6260, effective May 16, 2012.  He generally contends that a higher rating is warranted for his tinnitus, but has provided no specific argument in support of his claim.  However, a veteran is limited to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for recurrent tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260.  As there is no legal basis upon which to award a higher schedular disability rating for tinnitus, his claim for a rating in excess of 10 percent on a schedular basis must be denied.  The law, in particular the regulation governing schedular evaluation of tinnitus, is dispositive of the claim.  See Sabonis, supra.


ORDER

A rating in excess of 10 percent for tinnitus is denied.


REMAND

Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  38 U.S.C.       § 5103A (West 2014); 38 C.F.R. § 3.159 (2017).

VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim.  38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  For below noted reasons, the Board finds that, while the Veteran underwent a VA examination in September 2012, an additional VA opinion to determine the nature and etiology is required to decide the claim for service connection for bilateral hearing loss. 

With regard to the Veteran's claimed bilateral hearing loss, he has alleged that such is the result of noise exposure during service.  The Veteran's service treatment records are silent for any complaints, treatment or diagnosis of bilateral hearing loss.  Furthermore, the Board notes that at the Veteran's separation only a whisper test was administered.  As stated above, the Veteran underwent a VA examination in September 2012 and the examiner diagnosed bilateral sensorineural hearing loss.  He opined that such was not caused by or a result of an event in service.  The examiner provided the rationale that at separation the hearing test performed was a whispered voice test and that even when normal, it is not a reliable test to rule out the presence of frequency specific hearing loss, such as that typically found with military noise exposure.  Therefore, the examiner stated that the presence of hearing loss could not be ruled out with any certainty.  Furthermore, the examiner stated that it was well known that exposure to noise of high intensity and short duration such as that in the military caused permanent damage in the inner ear structures resulting in permanent hearing loss and tinnitus.  However, the examiner stated that the Veteran did not complain of difficulty hearing, despite audiogram results consistent with hearing loss, and that retroactive effects of noise exposure are not expected 56 years after separation from active service.  The Board finds that the examiner's rationale seems to contradict his opinion and therefore an addendum opinion should be obtained on remand. 

Relevant to the Veteran's claim for an increased rating for his depressive neurosis, the Court has held that, where the record does not adequately reveal the current state of claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination.  Allday v. Brown, 7 Vet. App. 517, 526 (1995). 

The record reflects that the Veteran was most recently afforded a VA Mental Disorders examination in February 2015, which addressed his depressive disorder.  The Board finds that a contemporaneous examination is necessary as so much time has passed and the Veteran has alleged significantly worsening symptoms. 

Specifically, the Veteran alleged that his condition is far worse than is represented by his current rating.  Therefore, the Board finds that a remand is required in order to determine the Veteran's current level of impairment with regard to his service-connected depressive neurosis.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).

The Board finds that the claim for entitlement to a TDIU is inextricably intertwined with the claims remanded herein, the outcomes of which could possibly have bearing on whether the Veteran meets the schedular criteria for TDIU benefits.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Finally, due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the claims file. 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Obtain updated VA treatment records.

2.  Return the claims file to the September 2012 VA audiologist for an addendum opinion.  If the audiologist who drafted the September 2012 opinion is unavailable, the opinion should be rendered by another appropriate medical professional.  The need for another examination is left to the discretion of the medical professional offering the addendum opinion.  

The examiner is asked to offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current hearing loss is related to the Veteran's military service, to include his claimed noise exposure in service.

The examiner must consider all evidence of record, to include lay statements pertaining to the onset and continuity of symptomatology of such disorder and the aforementioned etiological opinion.  Any opinion offered should be accompanied by clear rationale consistent with the evidence of record.

3.  The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected depressive neurosis.  

The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (West 2014).




______________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs