Citation Nr: 18146603 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-16 173 DATE: October 31, 2018 ORDER New and material evidence having not been received, the claim of entitlement to service connection for degenerative joint and disc disease status post laminectomy L5/S1 (back disorder) is not reopened. New and material evidence having not been received, the claim of entitlement to service connection for hypertension is not reopened. Service connection for a sleep disorder is denied. Service connection for Hepatitis C is denied. An initial rating in excess of 10 percent for tinnitus is denied. Service connection for PTSD is granted effective May 1, 2013. Service connection for tinnitus is granted effective May 1, 2013. Entitlement to an effective date prior to May 1, 2014, for the grant of a 10 percent rating for bilateral hearing loss is denied. REMANDED Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a November 2011 rating decision, the Agency of Original Jurisdiction (AOJ) reopened and denied the claim of entitlement to service connection for a back disorder; a timely notice of disagreement (NOD) was not filed and no new and material evidence was received within the appeal period. 2. Evidence received since the November 2011 decision is either cumulative or redundant of the evidence of record at the time of the November 2011 denial and, by itself or in conjunction with the evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of service connection for a back disorder. 3. In a July 2007 rating decision, the AOJ denied the claim of entitlement to service connection for hypertension; a timely NOD was not filed and no new and material evidence was received within the appeal period. 4. Evidence received since the July 2007 decision is either cumulative or redundant of the evidence of record at the time of the July 2007 denial and, by itself or in conjunction with the evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of service connection for hypertension. 5. The weight of the competent and probative evidence is against finding a diagnosed sleep disorder during the period on appeal. 6. The weight of the competent and probative evidence is against finding that Hepatitis C had its onset during or is otherwise related to the Veteran’s period of service. 7. The Veteran is in receipt of the maximum schedular rating for tinnitus. 8. The Veteran initially filed a VA 21-526EZ, claiming entitlement to service connection for PTSD, on May 1, 2014. 9. The competent and probative evidence is at least in equipoise as to whether symptoms of PTSD were present for the entire year prior to May 1, 2014. 10. The Veteran initially filed a VA 21-526EZ, claiming entitlement to service connection for tinnitus, on May 1, 2014. 11. The competent and probative evidence is at least in equipoise as to whether tinnitus was present for the entire year prior to May 1, 2014. 12. A request for an increased rating for bilateral hearing loss was received on May 1, 2014. 13. A September 2014 rating decision granted a 10 percent evaluation for bilateral hearing loss effective May 1, 2014. 14. A factually ascertainable increase in disability for bilateral hearing loss was not shown to have occurred within one year prior to May 1, 2014. CONCLUSIONS OF LAW 1. The November 2011 decision denying the claim of entitlement to service connection for a back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. Evidence received since the November 2011 decision is not new and material; accordingly, the claim of service connection for a back disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The July 2007 decision denying the claim of entitlement to service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 4. Evidence received since the July 2007 decision is not new and material; accordingly, the claim of service connection for hypertension is not reopened. 38 U.S.C. § 5108; 38 C.F.R. §§3.156(a). 5. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for Hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for entitlement to an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.84, DC 6260. 8. The criteria for entitlement to an effective date of May 1, 2013, for the grant of service connection for PTSD have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. 9. The criteria for entitlement to an effective date of May 1, 2013, for the grant of service connection for tinnitus have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. 10. The criteria for an effective date prior to May 1, 2014, for a 10 percent rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to March 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2014, December 2015, and April 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was initially assigned a noncompensable rating for bilateral hearing loss. VA received a request for an increased rating on May 1, 2014. A September 2014 rating decision assigned a 10 percent rating effective May 1, 2014. Although an increased rating was granted, the issue remained in appellate status, as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Board notes that new evidence was associated with the virtual file relating to the claims for increased ratings for bilateral hearing loss, tinnitus, and PTSD subsequent to the Statement of the Case (SOC) issued in April 2016. However, as those claims were subsequently readjudicated in an April 2017 rating decision and the Veteran was given an opportunity to submit argument or evidence afterward, remanding for a Supplemental Statement of the Case (SSOC) is unnecessary. New and Material Evidence Generally, a claim which has been denied in a final decision by an AOJ may not thereafter be reopened and allowed. 38 U.S.C. § 7105(b). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary must reopen the claim and review its former disposition. 38 U.S.C. § 5108. To be considered new, evidence cannot have been previously submitted to agency decision makers, or be cumulative or redundant of evidence of record at the time of the last prior final denial. To be material, evidence must, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim, and raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In deciding whether new and material evidence has been submitted, the Board considers evidence submitted since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back disorder. After reviewing the record, the Board finds that evidence received since the November 2011 decision denying service connection for a back disorder is either cumulative or redundant of the evidence of record at the time of the November 2011 denial and, by itself or in conjunction with the evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of service connection for a back disorder. In November 2011 the AOJ reopened the claim of service connection for a back disorder and denied the claim based on the lack of a nexus between the current disorder and the Veteran’s period of service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the November 2011 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the November 2011 decision. VA has not received new evidence since the November 2011 decision that relates to in-service complaints of, treatment for, signs or symptoms of, or a diagnosis of a back disorder. Nor has VA received new evidence since the November 2011 decision relevant to whether the Veteran’s current disorder had its onset in or is otherwise related to his period of service. As new and material evidence has not been received, the claim of entitlement to service connection for a back disorder is not reopened. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. After reviewing the record, the Board finds that evidence received since the July 2007 decision denying service connection for hypertension is either cumulative or redundant of the evidence of record at the time of the July 2007 denial and, by itself or in conjunction with the evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim of service connection for hypertension. In July 2007 the AOJ denied the claim of service connection for hypertension based on the lack of a nexus between the current disorder and the Veteran’s period of service, to include treatment for hypertension during service or within one year of service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the July 2007 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the July 2007 decision. VA has not received new evidence since the July 2007 decision that relates to in-service complaints of, treatment for, signs or symptoms of, or a diagnosis of hypertension. Nor has VA received new evidence since the July 2007 decision relevant to whether the Veteran’s current disorder had its onset in or is otherwise related to his period of service. As new and material evidence has not been received, the claim of entitlement to service connection for hypertension is not reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990).   3. Entitlement to service connection for a sleep disorder. After review of the record, the Board finds that the criteria for service connection for a sleep disorder have not been met. The record does not contain a diagnosis of a sleep disorder. In a May 2016 VA treatment report reflect that a history of obstructive sleep apnea was denied. The Board acknowledges that the Veteran has chronic sleep impairment associated with service-connected PTSD, however, this is a symptom, and not a diagnosed disorder. To the extent the Veteran has sleep impairment, such functional impairment is compensated by the 50 percent disability rating assigned for PTSD. See 38 C.F.R. § 4.130 (listing chronic sleep impairment as a symptom that may demonstrate entitlement to a 30 percent rating for psychiatric disorders). Without competent evidence of a separately diagnosed sleep disorder, the Board must deny the Veteran’s claim. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 4. Entitlement to service connection for Hepatitis C. After review of the record, the Board finds that the criteria for service connection for Hepatitis C have not been met. Initially, the Board notes that it is unclear whether the Veteran has a diagnosis of Hepatitis C. However, an April 2016 review of systems indicates the presence of Hepatitis C. 06/26/2017, CAPRI. Resolving reasonable doubt in favor of the Veteran, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran has a current diagnosis of Hepatitis C. A VA examination was not provided in conjunction with the Veteran’s claim for Hepatitis C, and the Board notes that the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4). VA has a duty to provide an examination when the record lacks evidence to decide the Veteran’s claim and there is evidence of (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). There is no evidence of complaints of, treatment for, or a diagnosis of Hepatitis C during service and the Veteran has not contended that Hepatitis C had its onset in or is otherwise related to service. Accordingly, the Board finds that the duty to provide an examination has not been triggered. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (explaining that something more than a Veteran’s conclusory, generalized statement is needed to trigger VA’s duty to assist by providing a medical nexus examination). The earliest evidence of Hepatitis C is a January 2016 positive antibody screen, more than 45 years after discharge. 03/23/2016, CAPRI. As previously noted, there is no evidence of complaints of, treatment for, or a diagnosis of Hepatitis C during service and that Veteran has not provided any specific contention (other than filing a claim for VA compensation) that Hepatitis C had its onset in or is otherwise related to service. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding that Hepatitis C had its onset in or is otherwise related to the Veteran’s period of active service. See 38 C.F.R. § 3.303. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Increased Ratings 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 593. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). 5. Entitlement to an initial rating in excess of 10 percent for tinnitus. The Veteran’s tinnitus is evaluated as 10 percent disabling, which is the maximum schedular rating available under Diagnostic Code 6260. See 38 C.F.R. § 4.87, DC 6260. The Board finds that the current 10 percent rating contemplates the impact of his tinnitus, such as impaired concentration. Accordingly, the Veteran’s claim for an increased rating for tinnitus is denied as a matter of law. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (concluding that the United States Court of Appeals for Veterans Claims (Court) erred in not deferring to the VA’s interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral). Effective Dates In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For claims for an increase in a service connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). 6. Entitlement to an effective date prior to May 1, 2014, for the grant of service connection for PTSD. 7. Entitlement to an effective date prior to May 1, 2014, for the grant of service connection for tinnitus. On May 1, 2014, the Board received Fully Developed Claims for entitlement to service connection for PTSD and tinnitus. A September 2014 rating decision granted service connection for PTSD and tinnitus effective May 1, 2014, the day of receipt of the claims. However, 38 U.S.C. § 5110(b) allows up to a one-year retroactive effective date for awards of disability compensation based on fully developed original claims for compensation received from August 6, 2013, through August 5, 2015. In this case, the Veteran’s fully developed original claims for service connection for PTSD and tinnitus were received on May 1, 2014, which is within the applicable date range. Additionally, the Board finds that the competent and probative evidence is at least in equipoise as to whether PTSD and tinnitus existed/was ascertainable during the entire one-year period prior to receipt of the claims on May 1, 2014. See 07/16/2014, C&P Exam; 08/15/2016, Correspondence. Accordingly, an effective date of May 1, 2013, is warranted for the grants of service connection for PTSD and tinnitus. 8. Entitlement to an effective date prior to May 1, 2014, for the grant of a 10 percent rating for bilateral hearing loss. A July 2007 rating decision granted service connection for bilateral hearing loss and assigned a noncompensable rating effective October 5, 2006. A November 2011 rating decision continued the noncompensable rating. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the November 2011 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. On May 1, 2014, VA received a Fully Developed Claim in which the Veteran requested an increased rating for bilateral hearing loss. An September 2014 rating decision granted a 10 percent evaluation for bilateral hearing loss, effective May 1, 2014, the date VA received the request for an increased rating. After review of the record, the Board finds that an effective date prior to May 1, 2014, for the grant of a 10 percent rating for bilateral hearing loss is not warranted. In this regard, there is no communication prior to May 1, 2014, and subsequent to the November 2011 decision, which might be construed as a claim for an increased rating for bilateral hearing loss. The Board notes that 38 U.S.C. § 5110(b)(2), which provides for an effective date up to one year prior to receipt of a fully-developed claim, is inapplicable, as the request for an increased rating is not an original/initial claim for disability compensation. Furthermore, the Board finds that the record does not establish that it was factually ascertainable that the Veteran’s bilateral hearing loss warranted a higher rating within one year prior to May 1, 2014. In this regard, the Veteran’s treatment records do not demonstrate symptoms of hearing loss that would warrant a rating in excess of 10 percent within one year prior to receipt of the May 1, 2014, claim for an increased rating. In short, there is no evidence demonstrating an increase in severity within one year prior to May 1, 2014. Accordingly, an effective date prior to May 1, 2014, for a 10 percent rating for bilateral hearing loss is not warranted.   REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded. 2. Entitlement to an initial rating in excess of 50 percent for PTSD is remanded. The last adjudicatory document issued by the SOC regarding the increased rating claims for bilateral hearing loss and PTSD was an April 2016 SOC. A remand is necessary for the AOJ to issue a supplemental statement of the case (SSOC) to consider VA treatment records, including February 2017 VA examinations, subsequent to the April 2016 SOC. 3. Entitlement to TDIU is remanded. The Board deems TDIU to be a component of the claim for an increased rating for PTSD in light of the July 2016 private psychologist’s statement that the Veteran’s psychiatric symptoms prevent him from maintaining gainful employment. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board will remand the claim for TDIU for appropriate development. These matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from April 2017 to the present. 2. Send appropriate notice to the Veteran regarding TDIU and complete any necessary development. This should include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran of the necessity of notifying the AOJ of his employment history and his educational background for proper adjudication of this claim. 3. After completing the above directives, issue a SSOC regarding entitlement to increased ratings for bilateral hearing loss and PTSD. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel