Citation Nr: 18146061 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 13-11 285 DATE: October 30, 2018 ORDER New and material evidence having been received, the claim for service connection for a back condition is reopened. Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A March 2006 rating decision denied service connection for a back condition. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. The evidence associated with the claims file subsequent to the March 2006 rating decision is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the Veteran’s claim. 3. The Veteran’s tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The March 2006 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim of service connection for a back condition has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a), (c) (2017). 3. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had service from September 2004 until January 2005 and from February 2005 until January 2006. He received the Combat Action Badge, among other decorations for this service. New and Material Evidence The Veteran seeks to reopen his service connection claim for a back condition. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 C.F.R. § 3.156 (a). New evidence is evidence not previously submitted, and material evidence is evidence that, by itself or when considered with previous evidence, relates to an unproven fact necessary to substantiate the claim. Id. Newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). The Veteran was denied service connection for a back condition in a March 2006 rating decision as there was no evidence of a back condition shown during service, within one year of service. He did not appeal, so the decision is final. 38 C.F.R. §§ 3.140, 3.156(c), 20.302, 20.1103. The Board must initially determine whether new and material evidence has been submitted to reopen the service connection claims prior to addressing the claims on their merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The evidence of record at the time of the March 2006 rating decision consisted of service treatment records and a VA examination. Evidence received since the rating includes lay statements, including to VA examiners, describing the incident in service and specifically alleging the back pain began after his Humvee ran off the road around 2005. He also submitted lay statements of fellow service members who witnessed the accident and indicated the Veteran began having back pain afterwards. This evidence is new as it was not previously submitted to agency decision makers, and material as it addresses the unestablished facts of aggravation by either service or a service connected disability. Significantly the Veteran has provided additional details about an inservice incident VA treatment records do reflect evidence of an antalgic gait. It is not redundant and, when considered with previous evidence of record, raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claims for service connection for a back condition is warranted. Increased Rating Entitlement to a disability rating in excess of 10 percent for tinnitus The Veteran’s tinnitus is rated 10 percent under Diagnostic Code 6260. 38 C.F.R. § 4.87. Under that diagnostic code, a single 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. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board further finds that referral for consideration of an extraschedular rating is not warranted as the evidence regarding the Veteran’s tinnitus does not show such an exceptional disability picture that would render the available schedular rating inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran has not provided any evidence that his tinnitus is of such a degree that the 10 percent schedular disability rating is insufficient. The evidence does not show frequent hospitalization or marked interference with employment as a result of tinnitus. Therefore, the Board finds that the schedular rating is adequate and no referral is required for extraschedular consideration. 38 C.F.R. § 3.321 (b). REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded Having reopened the claim the Board finds further development is necessary. Specifically, while a VA examination was previously provided, it did not provide a diagnosis and no opinion as to the etiology was then provided. The Veteran is diagnosed with chronic lower back pain. However, it is unclear if this disability results in any functional impairment. In Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), the U.S. Court of Appeals for the Federal Circuit held that where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Saunders court further held that to establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity. Id. Accordingly, further examination is necessary. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for sleep apnea. The Veteran has claimed both the hypertension and sleep apnea are caused or aggravated by the service connected PTSD. With regards to the apnea, a December 2014 examination concluded the apnea was not related to service and then attributed the insomnia and other sleep habits to the PTSD but did not specifically address whether the sleep apnea condition is caused or aggravated by PTSD. Further examination is necessary. 4. Entitlement to a compensable rating for bilateral hearing loss is remanded. 5. Entitlement to a TDIU is remanded. In a statement received by VA in March 2018, the Veteran’s uncle informed VA that the Veteran is in receipt of Social Security disability benefits. Review of the record indicates that the records associated with this award have not yet been obtained. VA has an obligation to obtain Social Security Administration (SSA) records associated with a veteran’s claim for Social Security disability benefits. See Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). As these records have not been obtained by VA, remand is therefore required to obtain them. The matters are REMANDED for the following action: 1. Request all Social Security disability benefits records from the Social Security Administration related to the Veteran’s disability benefits claim, including all medical records and copies of any decisions or adjudications, and associate them with the record. Any negative responses should be properly documented in the record. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current low back disability. The entire claims file should be reviewed by the examiner. After reviewing the record, the examiner is requested to: (a.) Identify any current low back disability and determine whether it results in any functional impairment regardless of the Veteran’s current employment status. (b.) For each low back disability identified, opine whether it at least as likely as not (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must discuss the Humvee accident as reported by the Veteran. It is essential that the examiner offer a detailed rationale discussing why and how all conclusions and opinions were reached. 3. Obtain an examination and addendum opinion from an appropriate clinician regarding the following: (a.) whether the Veteran’s sleep apnea is at least as likely as not related to proximately due to a service-connected disability, to include PTSD. (b.) whether the Veteran’s sleep apnea is at least as likely as not aggravated beyond its natural progression by a service-connected disability, to include PTSD. It is essential that the examiner offer a detailed rationale discussing why and how all conclusions and opinions were reached. 4. Obtain an examination and opinion from an appropriate clinician regarding the following: (a.) whether the Veteran’s hypertension is at least as likely as not related to proximately due to a service-connected disability, to include PTSD. (Continued on the next page)   (b.) whether the Veteran’s hypertension is at least as likely as not aggravated beyond its natural progression by a service-connected disability, to include PTSD. It is essential that the examiner offer a detailed rationale discussing why and how all conclusions and opinions were reached. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel