Citation Nr: 18145285 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-24 102 DATE: October 26, 2018 ORDER Entitlement to an initial rating more than 10 percent for tinnitus is denied. Entitlement to service connection for a sleep disorder is denied. Entitlement to service connection for headaches is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to an effective date earlier than July 30, 2014, for the grant of service connection for bilateral hearing loss and tinnitus is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code 6260. Factors rendering the application of the regular schedular provisions impractical have not been demonstrated. 2. The preponderance of the evidence of record does not show that the Veteran has a clinically diagnosed chronic sleep disorder. 3. The preponderance of the evidence of record does not show that the Veteran has clinically diagnosed chronic headaches. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating more than 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.87, Diagnostic Code 6260 (2017). 2. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 3. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1974 to May 1976. In March 2016, the Board granted entitlement to an initial 70 percent rating for a psychiatric disability and entitlement to a total disability rating based on individual unemployability (TDIU). The remaining issues were remanded for a statement of the case to be provided. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). In May 2016, a statement of the case was issued for the matters discussed herein, and the appeal has since been returned to the Board for further consideration. The effective date issue was not considered and will be addressed in the Remand. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Entitlement to an initial rating more than 10 percent for tinnitus. The Veteran contends that he is entitled to a higher initial disability rating for his service-connected tinnitus. The Veteran’s tinnitus is evaluated as 10 percent disabling under Diagnostic Code 6260. 38 C.F.R. § 4.87. Pursuant to Diagnostic Code 6260, a 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Moreover, there is no contention nor evidentiary showing that there is such impairment due to tinnitus as to render application of the regular schedular provisions impractical. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt 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 its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for a sleep disorder. Turning to the issue at hand, the Board observes that the Veteran’s service treatment records are essentially silent for any treatment for a sleep disorder. The Board further observes that the Veteran has received some VA and private psychiatric treatment, which includes symptoms such as difficulty sleeping. Importantly, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran is competent to report his symptoms of difficulty sleeping. However, an underlying disability related to a sleep disorder has never been identified during the current appeal period. There is no other competent medical evidence of record, VA or private, of a chronic sleep disorder during the applicable appeal period. The Board reiterates that it appears that any problems associated with his trouble sleeping have been adequately considered and compensated by his service-connected psychiatric disorder. In essence, the evidence of a current diagnosis of a sleep disorder is limited to statements from the Veteran and his general complaints. As has been discussed above, the Veteran is not competent to diagnose a disability such as a sleep disorder because the condition requires medical expertise and knowledge, including clinical testing, which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in service and thereafter, his reports are not competent evidence of a diagnosis of a sleep disorder for VA purposes. 38 C.F.R. § 3.159(a)(1), (2). In light of the absence of any competent evidence or clinical diagnosis of headaches, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107(b). Entitlement to service connection for headaches. Here, the Board observes that the Veteran’s service treatment records are essentially silent as to any treatment for headaches. The Board further observes that the Veteran’s post-service treatment records are repeatedly negative as to complaints of continuing headaches. Again, the Veteran is competent to report his headache pain. However, an underlying disability related to headaches has never been identified during the current appeal period. There is no other competent medical evidence of record, VA or private, of chronic headaches during the applicable appeal period. To summarize, the evidence of a current diagnosis of headaches is limited to statements from the Veteran and his general complaints. The Board finds that diagnosing a disability related to this condition requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in service and thereafter, his reports are not competent evidence of a diagnosis of a chronic sleep disorder for VA purposes. 38 C.F.R. § 3.159(a)(1), (2). In light of the absence of any competent evidence or clinical diagnosis of a sleep disorder, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to an initial compensable rating for bilateral hearing loss. The Board observes that the Veteran’s most recent and pertinent VA audiological examination occurred in March 2015. The VA examination findings show the left ear with 94 percent discrimination. Decibel (dB) loss at the pure-tone threshold of 500 Hertz (Hz) is 45, at 1000 Hz is 30, at 2000 Hz is 30, at 3000 Hz is 35, and at 4000 Hz is 40. The average decibel loss is 34 in the left ear. The right ear shows a speech discrimination of 94 percent. The Veteran’s right ear dB loss at the pure-tone threshold of 500 Hz is 45, at 1000 Hz is 35, at 2000 Hz is 30, at 3000 Hz is 25, and at 4000 Hz is 40. The average decibel loss is 33 in the right ear. A noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I, the better ear, with column I, the poorer ear. As it has been over 3 years since the Veteran was afforded a VA examination, a new VA examination is thereby necessary. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). Entitlement to service connection for hypertension. Initially, the Board observes that the Veteran’s service records are silent as to any treatment for or complaints of hypertension. The Board further observes that the Veteran has been clinically diagnosed with hypertension, but the exact date of onset is unclear. It does not appear that the Veteran has ever received a VA examination for his claimed hypertension. Given the clear diagnosis of hypertension, the Board finds that a VA examination would be of considerable assistance in determining this claim. Additionally, the Veteran’s most recent medical treatment records are from quite some time ago. A remand is also required to allow VA to obtain authorization to seek out any outstanding records. Entitlement to an earlier effective date for the award of service connection for bilateral hearing loss and tinnitus. As noted in the prior remand, the Veteran disagreed with both the rating and the effective date for tinnitus, and a statement of the case needed to include the earlier effective date issue. See Manlincon, supra. That was not done. As such, that issue is again Remanded for appropriate development. The matters are REMANDED for the following action: 1. Issue a statement of the case on the issue of entitlement to an effective date earlier than July 30, 2014, for the grant of service connection for bilateral hearing loss and tinnitus. The Veteran is hereby notified that to continue with the appeal as to that issue, a timely substantive appeal must be filed. Otherwise, the matter will be closed by the Agency of Original Jurisdiction. 2. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records, and associate them with the Veteran’s electronic claims file. If the AOJ cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran’s electronic claims file. 3. Then, after pertinent records are obtained, but whether or not records are obtained, schedule the Veteran for a new VA audiological examination to assess the current severity of his bilateral hearing loss disability. The audiologist is to be provided access to the Veteran’s electronic claims file and must specify in the report that these records have been reviewed. The VA audiologist must fully describe the functional effects caused by the bilateral hearing loss disability in the final report. 4. Also, schedule the Veteran for a VA examination with a VA examiner of appropriate expertise to determine the nature and etiology of the Veteran’s claimed hypertension. The examiner is to be provided access to the electronic claims file and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail, including all diagnoses. Any indicated diagnostic tests and studies should also be accomplished. The examiner should then opine whether the Veteran’s hypertension at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service. The examiner should specifically address the Veteran’s contentions and his lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service or since onset of symptomatology. The examiner should also address and reconcile any other pertinent evidence of record, as necessary. The examiner must provide a complete rationale for any opinions expressed, based on the examiner’s clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel