Citation Nr: 1803864	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  14-10 921A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for tinnitus.

2.  Entitlement to service connection for traumatic brain injury to include anxiety and memory loss.

3.  Entitlement to service connection for degenerative joint disease (DJD) of the cervical spine.

4.  Entitlement to service connection for DJD of the lumbar spine.

5.  Entitlement to service connection for bilateral hearing loss.

6.  Entitlement to service connection for cerumen impaction (claimed as left earache).

7.  Entitlement to a total disability rating based upon individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Ronald Sykstus, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Barrett, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1979 to January 1988.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In April 2017, the Veteran testified at a video conference Board hearing before the undersigned Veterans Law Judge.  A transcript of that proceeding is of record.

The issues of entitlement to service connection for DJD of the cervical spine and lumbar spine, bilateral hearing loss, cerumen impaction, 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

The Veteran's service-connected tinnitus is assigned at 10 percent, the maximum rating authorized under Diagnostic Code 6260.


CONCLUSION OF LAW

There is no legal basis for the assignment of a schedular evaluation for tinnitus in excess of 10 percent.  38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks a higher rating for his service-connected tinnitus.  Service connection for tinnitus was granted in a July 2011.  The Veteran was assigned a 10 percent rating effective from October 4, 2010.  See 38 C.F.R. § 4.87, DC 6260.  

Since the Veteran's service-connected tinnitus has been assigned the maximum schedular rating available, there is no legal basis upon which to award a higher schedular evaluation.  As such, entitlement to a rating for tinnitus in excess of 10 percent is not warranted and the appeal must be denied.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  There are no additional expressly or reasonably raised issues presented on the record.


ORDER

An initial rating in excess of 10 percent for tinnitus is denied.



REMAND

While further delay is regrettable, the Board finds that additional development is necessary prior to adjudication of the Veteran's service connection claims.

At the outset, the Board notes that additional evidence (i.e. VA and private medical records) was received following the April 2014 substantive appeal and following certification of the case to the Board in September 2014.  Section 501 of the Camp Lejeune Act of 2012 provides an automatic waiver of evidence submitted by a Veteran or his or her representative with or after a Substantive Appeal received on or after February 2, 2013.  A waiver has not been submitted in this case as it pertains to the specific evidence identified above.  A waiver was provided in April 2017 for other evidence submitted by the Veteran.  As the Veteran's VA Form 9 was received in April 2014, the Board may consider the private medical records and lay argument submitted by the Veteran without requiring a waiver of AOJ consideration.  This exception does not, however, extend to the VA medical records and VA examination reports secured by VA.  Such evidence is not duplicative of evidence previously of record.  As the claims are being remanded, no prejudice will result.  See 38 U.S.C. § 20.1304 (2017).  

A.  TBI

The Veteran contends that he suffered a TBI while driving an armed personnel carrier in May 1980.  Service treatment records (STRs) confirm that the Veteran suffered a laceration on his chin when a truck latch fell on his head.  At his April 2017 Board hearing, he testified the hatch put a large dent in his helmet and knocked him unconscious.

The Veteran submitted a buddy statement from B.W., a fellow service member, who supports the Veteran's report that he was struck forcibly in the head by a broken hatch.  The buddy statement also corroborates the Veteran's claim that his helmet was dented and that the Veteran was knocked unconscious.  B.W. reports that the Veteran's truck stopped when it coasted into his vehicle.  The Veteran also submitted a buddy statement from his wife.  In November 2010 she stated that she has known the Veteran for 22 years and that he had a lot of anxiety.  He had trouble sleeping and sometimes he just closed everybody out for hours. 

The Veteran was afforded VA examinations for his claimed TBI in July 2011 and in August 2016.  The 2011 examiner, a primary care physician, concluded there was no evidence of TBI in service because the service treatment records were silent for any report of loss or decreased level of consciousness or alteration in mental states (confusion, disorientation, slowed thinking, etc.) and no documented neurologic deficits.  In response to the Veteran's report of memory loss and anxiety, the examiner commented that memory loss and anxiety were beyond her scope and that a mental examination should be considered if additional information was needed.

At a subsequent VA examination in August 2016, another examiner, also a physician, diagnosed the Veteran with a TBI based on complaints of mild memory loss and prior diagnoses of anxiety and panic attacks.  She further found that the TBI was incurred as a result of an in-service injury.

The Board notes that VBA Fast Letter 09-40 (Oct. 14, 2009) provides that physicians who are specialists in Physiatry, Neurology, Neurosurgery, and Psychiatry and who have training and experience with Traumatic Brain Injury may conduct TBI examinations.  The expectation is that the physician would have demonstrated expertise, regardless of specialty, through baseline training (residency) and/or subsequent training and demonstrated experience.  In addition, a nurse practitioner, a clinical nurse specialist, or a physician assistant, if they are clinically privileged to perform activities required for C&P TBI examinations, and have evidence of expertise through training and demonstrated experience, may conduct TBI examinations under close supervision of a board-certified or board-eligible physiatrist, neurologist, or psychiatrist.  

From review of the file it appears that the 2011 examiner was not qualified to perform the TBI examination.  It remains unclear as to whether the August 2016 VA examiner was qualified to conduct the examination either.  In this respect, the file contains a December 2016 deferred rating decision which states there is no indication that the recent examination was conducted by a qualified individual.  The deferred rating decision indicated that this should be confirmed or a new initial TBI VAE should be arranged.  The Board observes no further confirmation or development in this regard.  Accordingly, on remand, the RO must confirm whether the August 2016 VA examiner was qualified to conduct that examination per VBA Fast Letter 09-40 (Oct. 14, 2009) and if unable to do so; arrange for a new TBI examination and opinion.

B.  Bilateral Hearing Loss

Service treatment records are negative for a diagnosed hearing loss disability per 38 C.F.R. § 3.385.  A VA examination in July 2011 showed findings that do not meet the criteria for a hearing loss disability as defined in 38 C.F.R. § 3.385.

The current evidence fails to show the presence of a bilateral hearing loss disability for VA purposes.  However, this claim is being remanded for other reasons, to include updating the file with additional VA outpatient treatment records dated after October 2016.  In light of this evidentiary development, the Board will defer adjudication of this issue at this time as more recent VA records may contain relevant evidence.38 C.F.R. § 3.159.

C. DJD of the Lumbar and Cervical Spine

The Veteran was afforded a VA examination for DJD of his cervical spine and lumbar spine in July 2011.  The examiner concluded that the Veteran's spine disabilities were not related to service because the STRs were silent for complaints or ongoing treatment for neck and low back conditions and private records were silent until 2003 for complaints of neck pain.  Therefore, she concluded it was less likely as not these conditions were caused by or a result of the injury to the Veteran's head or a result of active duty service.

The VA examiner provided a rationale based solely on the fact that service treatment records were silent for complaints of neck or back pain during active service.  The examiner did not take into consideration the Veteran's contention that he had neck and back pain since his accident in May 1980, nor did the examiner indicate whether the Veteran's wife's statement was taken into consideration.  In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court held that that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service and the lack of documented findings, alone, is not an adequate basis for a negative opinion.

In light of the cumulative record, to include the inadequacy of the VA examiner's July 2011 opinion, the Board will not proceed with final adjudication of the claims until a competent VA medical opinion is provided, in order to clarify the etiology of the Veteran's claimed cervical and lumbar spine disabilities on appeal.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Dalton.

D.  Cerumen Impaction

In regards to cerumen impaction, the Veteran was afforded a VA examination in July 2011.  The examiner noted that the Veteran had several complaints of ear pain in service, but an opinion on the cause of his current ear pain was deferred to an Ear, Nose, and Throat (ENT) specialist as it was out of the audiologist's scope of practice.  No further examination has been conducted to ascertain whether any currently diagnosed cerumen impaction or other left ear disability is etiologically related to his service.  Such an examination must be performed before the Board can render a decision.  

E. TDIU

At his Board hearing, the Veteran testified that he could not work because of the accumulation of his disabilities.  As the Board has jurisdiction over the Veteran's appeal for an increased rating, and the issue of TDIU is part and parcel of any increased rating claim, and so is within the Board's jurisdiction.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The claim for TDIU is inextricably intertwined with the increased rating and service connection claims and must also be remanded.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc).

Accordingly, the case is REMANDED for the following action:

1.  Update the file with any outstanding VA treatment records dated since October 2016 and associate them with the file.
 
2.  Ask the Veteran to identify and authorize VA to obtain any additional, relevant private treatment records that he would like to be considered.  If records are unavailable, his claim file must be clearly documented to that effect and the Veteran and his representative notified in accordance with 38 C.F.R. § 3.159(e).

3.  Arrange for a VA initial evaluation of residuals of TBI examination with an appropriate examiner (physiatrist, psychiatrist, neurosurgeon, neurologist, or a generalist clinician who is qualified to conduct such an examination).  The examiner is asked to review the relevant information in the record and undertake any needed clinical and/or diagnostic testing.  Based on these examination results, the examiner is asked to provide an expert medical opinion on each of the following questions:

a) Provide a current diagnosis for any and all cognitive and/or TBI disorders found.  If the Veteran previously had any such medical condition, but it is no longer extant, when did that condition resolve?

b) For each diagnosis, is it at least as likely as not (i.e. 50 percent or greater probability) that the diagnosis involves residuals of service, to specifically include his May 1980 injury?

c) Is it at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's currently diagnosed cognitive disorder (claimed as memory loss) is related to his military service, to include the May 1980 head injury, or secondary to any diagnosed TBI. 

d) Is it at least as likely as not that the Veteran's currently diagnosed psychiatric disorder (claimed as anxiety) is related to his military service, to include the May 1980 head injury, or secondary to any diagnosed TBI. 

4.  Schedule the Veteran for a VA examination to determine the nature and etiology of his cervical spine and lumbar disabilities.  The examiner should answer the following questions:

a) Is it at least as likely as not (a 50 percent probability or greater) that the cervical spine DJD is related to service, to include as a result of the Veteran's May 1980 injury?

b) Is it at least as likely as not that the Veteran's lumbar spine DJD is related to service, to include as a result of his the May 1980 injury?

A detailed rationale for the opinion must be provided.  In providing the above opinion, the examiner must consider and address the Veteran's credible reports of back and neck pain since service, the verified report of an in-service injury, and any other lay statements of record (notably his wife's statement received in November 2010) regarding the onset and the continuity of symptomatology.  

5.  Schedule the Veteran for an ENT examination for the purpose of determining the etiology of his claimed cerumen impaction or any other left ear disability.  The examiner must review the claims file and must note that review in the report, to include all service medical records and audiological reports contained therein.  All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail.

The examiner is to provide an opinion as to the following:

a) The examiner should identify all current left ear disabilities found to be present, including but not limited to cerumen impaction.

b) For any left ear disability found, is it at least as likely as not (a 50 percent or higher degree of probability) that any left ear disability had its clinical onset during active service or is related to any in-service disease, event, or injury?  

All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

6.  Send the Veteran an application for TDIU (VA Form 21-8940) and conduct any development needed to adjudicate the issue of entitlement to a TDIU.

7.  After all of the above actions are completed, readjudicate the appeal, to include Entitlement to a TDIU.  If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for further appellate consideration.

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).

These claims must be afforded expeditious treatment.  The law requires that all claims 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).




______________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs