Citation Nr: 18147597 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-40 974A DATE: November 5, 2018 ORDER Entitlement to service connection for migraine headaches, to include as due to a service-connected disability, is granted. Entitlement to service connection for sleep apnea, to include as due to a qualifying chronic disability, is denied. Entitlement to a rating in excess of 10 percent disabling for glaucoma of the left eye, to include on an extraschedular basis is denied. Entitlement in an increased rating for tinnitus, currently evaluated as 10 percent disabling, to include on an extraschedular basis, is denied. Entitlement to a rating for unspecified depressive disorder in excess of 30 percent prior to May 15, 2018 is denied. Entitlement to a rating for unspecified depressive disorder (addressed as an acquired psychiatric disorder, claimed as depression) of 70 percent disabling from May 15, 2018, is granted. Entitlement to an earlier effective date for service connection for unspecified depressive disorder (addressed as an acquired psychiatric disorder, claimed as depression), is denied. Entitlement to an earlier effective date for service connection for tinnitus, is denied. Entitlement to an earlier effective date for service connection for glaucoma of the left eye, is denied. FINDINGS OF FACT 1. The Veteran currently has headaches, but there is no persuasive evidence such headaches were chronic during or after service, and no medical opinion links them to service. 2. Resolving all doubt in favor of the Veteran, his current headaches are aggravated by his service-connected tinnitus. 3. The Veteran has not been shown to have a diagnosis of sleep apnea. 4. The Veteran’s tinnitus currently rated at 10 percent is the maximum schedular rating for service connected tinnitus; the Veteran has not advanced any specific reasons as to why a higher rating is warranted on an extra-schedular basis. 5. The Veteran’s left eye disability has not been shown to warrant a rating higher than 10 percent disabling; the Veteran has not advanced any specific reasons a higher rating is warranted on an extra-schedular basis. 6. Prior to May 15, 2018, the Veteran’s service-connected depression was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care and normal conversation). 7. As of May 15, 2018, the Veteran’s service-connected depression has been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, and thinking and/or mood. 8. The Veteran’s earliest claim for service connection for depression was received on December 27, 2004 and the Veteran has not advanced any specific reasons as to why an earlier effective date is warranted. 9. The Veteran’s claim for service connection for tinnitus was received on December 16, 2011 and the Veteran has not advanced any specific reasons as to why an earlier effective date is warranted. 10. The Veteran’s claim for service connection for glaucoma was received on December 20, 2012 and the Veteran has not advanced any specific reasons as to why an earlier effective date is warranted. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for migraine headaches as aggravated by service-connected tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for a rating in excess of 10 percent for glaucoma of the left eye and the criteria for referral for extra-schedular consideration pursuant to 38 C.F.R. § 3.321 for a rating in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.75, 4.76, 4.77, 4.79, Diagnostic Codes 6013-6080. 4. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for tinnitus and the criteria for referral for extra-schedular consideration pursuant to 38 C.F.R. § 3.321 for a rating in excess of 10 percent for bilateral tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.87, DC 6260. 5. The criteria for a disability rating in excess of 30 percent for the service-connected depression prior to May 15, 2018 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9434. 6. The criteria for a disability rating greater than 30 percent for depression have been met as of May 15, 2018. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9434. 7. The criteria for assignment of an effective date earlier than December 11, 2012, for the award of service connection for a depressive disorder, have not been met. 38 U.S.C. §§ 5101 (a), 5110(a); 38 C.F.R. §§ 3.1, 3.151, 3.400. 8. The criteria for assignment of an effective date earlier than December 16, 2011, for the award of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 9. The requirements for an effective date prior to December 20, 2012, for the grant of entitlement to service connection for glaucoma, have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to November 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2018, December 2015, and August 2014 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2015, the Board remanded the matters of service connection for headaches, sleep apnea and an acquired psychiatric disorder, claimed as depression to the Agency of Original Jurisdiction (AOJ) for additional development. The appeals have since returned to the Board. The Board finds that the AOJ has substantially complied with the instructions of the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where there was substantial compliance with the Board's remand instructions). SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by active military service. 38 U.S.C. § 1110. 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”- the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For purposes of 3.303(b), where the veteran asserts entitlement to service connection for a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303 (b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303 (a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). The Court has construed this provision as entailing “any additional impairment of earning capacity resulting from an already service- connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition.” Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) caused, or (b) aggravated by a service-connected disability. Id. See also Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for headaches, to include as due to a service connected disability. The Veteran contends his headaches are related to service, or as a result of his service connected tinnitus. The Veteran’s service treatment records are silent for complaints, treatment, or diagnosis of, a chronic headache condition. In an examination conducted in September 1993, shortly before the Veteran left service, the Veteran denied any frequent or severe headaches. On examination the Veteran did not report any headaches and his head and neurological system were normal. There exists no evidence showing diagnosis of a chronic headache condition (e.g., migraine headaches) to a compensable degree within 1 year of your release from active military service. The Veteran was provided a VA examination in August 2014 where the examiner diagnosed him with tension headaches. The examiner did not associate this condition with his service in Southwest Asia. Rather, the examiner opined this condition is related to the Veteran’s care of his ailing mother. The Disability Benefits Questionnaire from Dr. H.S. in April 2015, provided diagnoses of tension and migraine headaches. He indicated the Veteran’s headaches are at least as likely as not permanently aggravated by tinnitus. The Veteran was afforded another VA Headache Examination in February 2018, the examiner confirmed a diagnosis of migraines, which the examiner said is less likely than not related to the Veteran’s tinnitus. She reviewed the claims folder and based this opinion on there being no complaints of headaches prior to 2014 and the Veteran’s reported onset of tinnitus during service. She also stated the Veteran denied seeking treatment for headaches. The examiner explained that while a relationship between tinnitus and headaches is possible, without mere speculation, she could not state that the Veteran’s migraines were due to his tinnitus. In an addendum opinion provided by DR. H.S. in June 2018, he confirmed his previous diagnosis and opinion that the Veteran’s headaches were permanently aggravated by his tinnitus. He explained that it is clear the Veteran’s tinnitus is as least likely as not brought on the Veteran’s initial headaches. He opined it is at least as likely as not that the Veteran’s frequently prostrating headaches are further caused and permanently aggravated materially and substantially by his service connected depressive disorder. After a careful review of the record, the Board finds that the evidence of record is at least in equipoise. In this regard, the Board finds Dr. H.S.’s opinion to be of greater probative weight. While the VA examiner and Dr. H.S. are both medical professionals, considered all relevant facts, and reviewed the case file, Dr. H.S.’s nexus opinion addressing secondary service connection on an aggravation basis is persuasive and the VA examiner was unable to provide an opinion on aggravation. Therefore, the Board finds that his headaches have been aggravated by his service-connected tinnitus; thus, the nexus element of the claim is established. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d at 1364. Accordingly, service connection is warranted for headaches on a secondary aggravation basis. The Board notes that 38 C.F.R. § 3.310 (b) contemplates a baseline to assess the severity of a nonservice-connected disability that is aggravated by a service-connected disability. However, the Board determines that this is more akin to a downstream rating aspect of the claim that should be addressed in the first instance by the RO following implementation of the instant decision. 2. Entitlement to service connection for sleep apnea, to include as due to as a qualifying chronic disability. The Veteran contends that she has sleep apnea due to stress related to service or a service-connected disability. The Veteran’s service treatment records are devoid of reports of, treatment for, or a diagnosis of a sleep disorder, to include complaints of loud snoring or other symptoms. During his September 1993 service examination, shortly before he left service, neurologic and psychiatric findings were within normal limits and he denied then having, or ever having had a past or current medical history of frequent trouble sleeping. Post-service treatment records show no evidence that the Veteran reported, sought treatment for, or was diagnosed with a sleep disorder. The Veteran asserted that he had a sleep disorder due to a qualifying chronic disability. As he served in Southwest Asia from February 1991 to April 1991, the Veteran was afforded a VA examination to ascertain if he has a clinical diagnosis of sleep apnea, and to ascertain if this condition is due to a qualifying chronic disability. In August 2014 the examiner failed to diagnosis the Veteran with sleep apnea. The examiner attributed the Veteran’s sleep difficulties as symptoms associated with his unspecified depressive disorder, which is already being compensated in the evaluation that has been assigned for his unspecified depressive disorder. The preponderance of the probative and competent evidence is therefore against the Veteran's claim of entitlement to service connection for sleep apnea, to include as due to a qualifying chronic disability. As previously discussed, in order to establish direct service connection, there must be competent medical evidence of a current disability or signs or symptoms of such, a disease or injury in service, and competent medical evidence linking the claimed in-service disease or injury to the current disability. Here, the probative evidence does not show the Veteran has been diagnosed with sleep apnea. Moreover, he is already compensated for sleep impairment as part of his major depression. To the extent that the Veteran has sleep symptoms caused by major depression, these symptoms are already being compensated under 38 C.F.R. § 4.130 (noting symptoms of “sleep impairment”). In addition to the medical evidence, the Board has considered the Veteran’s statements concerning the etiology of his claimed disorder. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), a complex neurological disorder, such as sleep apnea, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board places greater probative weight on the opinion of the VA clinician, a competent, experienced medical professional, than on the Veteran’s lay statements. As the preponderance of the evidence is against the claim, the “benefit-of-the-doubt” rule is not applicable and the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz, 274 F.3d 1361 (Fed. Cir. 2001). INCREASED RATINGS Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Rating the same disability under various diagnoses is to be avoided. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). A veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 3. Entitlement to a rating in excess of 10 percent disabling for glaucoma of the left eye, to include on an extraschedular basis. The Veteran contends that his glaucoma is worse than the 10 percent that it is currently rated. The Veteran was assigned a 10 percent rating based on vision impairment. The Veteran’s glaucoma is rated under 38 C.F.R. § 4.84a, Diagnostic Codes 6013-6080. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Under these criteria, Diagnostic Code 6013 provides that open angle glaucoma is to be rated based on visual impairment due to open angle glaucoma. Diagnostic Code 6080 rates eye disorders based on visual field defects. Diagnostic Code 6013, the diagnostic criteria used to evaluate simple, primary, and noncongestive glaucoma. Under these criteria, open angle glaucoma is to be rated based on visual impairment due to open angle glaucoma or a minimum rating of 10 percent is assigned if continuous medication is required. 38 C.F.R. § 4.79, Code 6013. Diagnostic Code 6080 evaluates eye disabilities based upon impairment of visual fields. See 38 C.F.R. § 4.84a. Measurement of the visual field will be made when there is disease of the optic nerve or when otherwise indicated. The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual field in each of the eight 45-degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given 38 C.F.R. § 4.76a, Table III. The degrees lost are then added together to determine total degrees lost. This amount is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by eight represents the average contraction for rating purposes. 38 C.F.R. § 4.76a. According to Table III, the normal visual field at the 8 principal meridians, in degrees, is: temporally, 85; down temporally, 85; down, 65; down nasally, 50; nasally, 60; up nasally, 55; up, 45; up temporally, 55. Under Diagnostic Code 6080, a 10 percent rating is assigned for a unilateral scotoma; with remaining field of 46 to 60 degrees bilaterally or unilaterally; with remaining field of 31 to 45 degrees unilaterally; with remaining field of 16 to 30 degrees unilaterally; loss of superior half of visual field bilaterally or unilaterally; loss of interior half of visual field unilaterally; loss of nasal half of visual field bilaterally or unilaterally; and loss of temporal half of visual field unilaterally. 38 C.F.R. § 4.79. A 30 percent rating is assigned for remaining field of 31 to 45 degrees unilaterally; concentric contraction of visual field unilaterally; loss of temporal half of visual field bilaterally; and homonymous hemianopsia visual filed defects. A 50 percent rating is assigned for remaining field of 16 to 30 degrees bilaterally. A 70 percent rating is assigned for remaining field of 6 to 15 degrees bilaterally. A 100 percent rating is assigned for concentric contraction of visual field with remaining field of 5 degrees. 38 C.F.R. § 4.79. Under the rating criteria, visual impairment is also rated based on impairment of visual acuity (excluding developmental errors of refraction) and muscle function. Under the rating criteria, the severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.79. Under those criteria, impairment of central visual acuity is rated from 0 percent to 100 percent based upon the degree of the resulting impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. 38 C.F.R. § 4.79, Diagnostic Codes 6061-6066. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. A 10 percent rating is warranted only when there is (1) 20/50 vision in one eye with 20/40 or 20/50 vision in the other eye; (2) 20/70 vision in one eye with 20/40 vision in the other eye; or (3) 20/100 vision in one eye with 20/40 vision in the other eye. 38 C.F.R. § 4.79, Diagnostic Code 6066. A 20 percent rating is warranted when there is (1) 20/70 vision in one eye with 20/50 vision in the other eye; (2) 20/100 vision in one eye with 20/50 vision in the other eye; (3) 20/200 vision in one eye with 20/40 vision in the other eye; or (4) 15/200 vision in one eye with 20/40 vision in the other eye. 38 C.F.R. § 4.79, Diagnostic Code 6066. A 30 percent rating is warranted (1) when vision in both eyes is correctable to 20/70; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/50; (5) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/40; (6) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/40; and (7) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, 6066. A 40 percent rating is warranted (1) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/70; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/50; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/50 or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.79, Diagnostic Codes 6063, 6064, 6065, 6066. To determine the rating for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, separately rate the visual acuity and visual field defect, expressed as a level of visual acuity, and combine them under the provisions of §4.25. 38 C.F.R. § 4.77 (c). Under the rating criteria, the maximum rating for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. 38 C.F.R. § 4.75 (d). The rating for visual impairment may be combined with ratings for other disabilities of the same eye that are not based on visual impairment, such as disfigurement under Diagnostic Code 7800. In addition, the General Rating Formula for Diagnostic Codes 6000 through 6009 provides for a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Since the Veteran was awarded service connection with a 10 percent rating from December 2012, private treatment records do not show an objective worsening of this condition. The VA treatment records show the Veteran continues to be prescribed continuous medication for glaucoma. These records also note impairment of visual fields of the left eye, but specific measurements were not recorded. The Veteran was afforded a VA eye examination in April 2016, the examiner provided a diagnosis of angle recession glaucoma. The examiner noted the Veteran continues to take medication for his glaucoma. His visual acuity was corrected to 20/40 or better. There was impairment of visual fields, and the left eye shows an average contraction to 51.375 degrees. The examination showed the Veteran’s normal field of vision temporally is 75 degrees, normal vision down temporally is 65 in the left eye, the normal field of vision down is 55 degrees, down nasally, is 40, normal vision nasally is 45, up nasally, is 35, normal field of vision up is 38 degrees, the final field of vision considered for the left eye is up temporally is 55. The total remaining visual field for the left eye is 411. When this number is divided by the eight directions, rounded up, the average contraction is obtained. The left eye can be rated on its concentric contraction or based on an equivalent visual acuity of 20/50. Unilateral concentric contraction of the left eye visual field with remaining field of 46 to 60 degrees warrants a 10 percent evaluation, and is included in the Veteran’s overall visual fields evaluation. As noted above, when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, the visual acuity and visual field defect (expressed as a level of visual acuity), are separately evaluated and combined under the provisions of 38 C.F.R. §4.25 (38 C.F.R. §4.77(c)). The Veteran’s visual acuity warrants a 0 percent evaluation. His visual field defect warrants a 10 percent evaluation. These evaluations combine under 38 C.F.R. §4.25 for a 10 percent evaluation. The results from the Veteran’s VA examination in 2016 equate to a 10 percent rating for visual field impairment (see 38 C.F.R. § 4.31) and a 0 percent rating for visual acuity. As such, the criteria for an increased disability rating in excess of 10 percent for visual field impairment have not been met. 38 C.F.R. § 4.79, Diagnostic Code 6061-6080. The Board notes the Veteran and his representative have raised the issue of potential entitlement to and referral for extra-schedular consideration as to an increased rating for his left eye glaucoma. As such the Board will consider whether referral on an extraschedular basis is warranted as to his left eye glaucoma. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. The first element of extra-schedular consideration requires a finding that the evidence “presents such an exceptional or unusual disability picture that the available schedular evaluations for that service connected disability are inadequate.” See id. at 115. In order to determine whether a disability is “exceptional or unusual,” there “must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.” Id. “[I]f the [rating] criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required.” Id. The first Thun element is not satisfied here. The Veteran’s left eye glaucoma symptoms are specifically contemplated by the rating schedule as part of the rating schedule for his left eye glaucoma. See 38 C.F.R. § 4.79, Diagnostic Code 6013-6080. The Veteran has not identified any factors, symptoms or dysfunction not contemplated by the schedular criteria. The Board concludes that the schedular rating criteria reasonably describe the Veteran’s disability picture. In short, there is nothing exceptional or unusual about the Veteran’s left eye glaucoma because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, referral for extra-schedular consideration is not warranted. The Board finds that the preponderance of the evidence of record is against a disability rating in excess of 10 percent for the service-connected eye disability. As the preponderance of the evidence is against the claim, the “benefit-of-the-doubt” rule is not applicable and the appeal is denied. Gilbert, 1 Vet. App. 49 (1990); Ortiz, 274 F.3d 1361 (Fed. Cir. 2001). 4. Entitlement in an increased rating for tinnitus, currently evaluated as 10 percent disabling, to include on an extraschedular basis. The Veteran contends that he is entitled to a higher disability rating for service-connected tinnitus. The Veteran’s tinnitus is rated 10 percent under DC 6260. 38 C.F.R. § 4.87. Pursuant to DC 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. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board notes the Veteran and his representative have raised the issue of potential entitlement to and referral for extra-schedular consideration as to an increased rating for tinnitus. As such the Board will consider whether referral on an extraschedular basis is warranted as to tinnitus. As discussed above, under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. The first Thun element is not satisfied here. The Veteran’s tinnitus is manifested by ongoing intermittent ringing, roaring, buzzing, hissing, and whistling in his ears. The Veteran’s intermittent ringing in his ears, is specifically contemplated by the rating schedule as part of the rating schedule for recurrent tinnitus. See 38 C.F.R. § 4.87, Diagnostic Code 6260. The Veteran has not identified any factors, symptoms or dysfunction not contemplated by the schedular criteria. The Board concludes that the schedular rating criteria reasonably describe the Veteran’s disability picture. In short, there is nothing exceptional or unusual about the Veteran’s tinnitus because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, referral for extra-schedular consideration is not warranted. 5. Entitlement to a rating for unspecified depressive disorder (addressed as an acquired psychiatric disorder, claimed as depression) in excess of 30 percent disabling, to include on an extraschedular basis. The Veteran is claiming that his depression is more severe than is currently rated. The Veteran is currently service-connected for depression which is rated as 30 percent disabling. The rating criteria for rating mental disorders reads as follows: a 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. A 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. Id. A 30 percent rating requires Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. As part of his claim for an increased rating, the Veteran’s underwent a VA examination for his service-connected depression was in August 2014. The VA examiner diagnosed the Veteran with unspecified depressive disorder and alcohol use disorder, in remission. The examiner noted the Veteran’s mood was dysphoric with blunted affect, and rapport was slow to develop. Mental status examination was normal otherwise. The examiner noted the Veteran’s symptoms were a depressed mood and chronic sleep impairment, described as having difficulty getting to, and remaining asleep. The examiner noted his sleep problems appear to be multifactorial, with contributing factors including pain, recent eye surgery, worrisome thoughts about current and past life stressors and depressed mood. The examiner indicated the Veteran had occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or; symptoms controlled by medication. The Veteran was afforded another VA Mental Examination in October 2015. The examiner provided a diagnosis of unspecified depressive disorder. The examiner indicated the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to depressed mood, mild memory loss, and chronic sleep impairment. Mood was "moody," and mental status examination was otherwise normal. In a May 2018 mental disorders (other than PTSD and eating disorders) disabilities benefits questionnaire, the examiner found the Veteran neglects his hygiene and appearance without showering, grooming, or changing his clothes up to two weeks during severe depressed episodes. The examiner noted the Veteran has intermittent inability to perform activities of daily living. The Veteran stated his brother performs grocery shopping, meal preparation, household chores, and helps manage finances. The examiner noted that Veteran reported waking up depressed, tired, lethargic, and irritable from a poor night’s sleep. The examiner opined the Veteran’s depression resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood. The examiner noted that the Veteran file was reviewed. The Veteran has also submitted buddy statements from various family members indicating that his depression prevents him from leaving the house, that he is easily upset, has panic attacks once a week, and that he neglects his personal hygiene and appearance. Prior to May 15, 2018, the Board finds that, after a review of the pertinent evidence of record, a rating in excess of 30 percent is no warranted. During this period, the Veteran was noted to have a depressed mood and a chronic sleep impairment. His mood was dysphoric (often described himself as “moody”) and he noted mild memory loss. While he displayed some decreased work efficiency with some trouble performing occupational tasks, he was generally functioning satisfactorily. He displayed no symptoms that would justify a higher evaluation, such as circumstantial speech, more than one panic attack per week, impaired judgement, or impaired abstract thinking. However, after a careful review of the record, the Board finds that that evidence is at least in equipoise as to the period after May 15, 2018. In this regard, the Board finds Dr. H.H.’s opinion and the VA examiner’s opinions are entitled to equal probative weight as both are medical professionals, considered all relevant facts, and offered a rationale for their opinions. Consequently, the Board resolves all doubt in the Veteran’s favor and finds that a rating of 70 percent disabling for depression is warranted from May 15, 2018. Because the Veteran’s disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluations are adequate, no referral for extra-schedular is required. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); VAOPGCPREC 6-96 (August 16, 1996). The evidence does not show anything unique or unusual about the Veteran’s depression that would render the schedular criteria inadequate. As noted above, the first element of extra-schedular consideration requires a finding that the evidence “presents such an exceptional or unusual disability picture that the available schedular evaluations for that service connected disability are inadequate.” Thun supra. The Court has also found that it was not necessary for the Board to discuss step two of Thun when it “properly determines that the first element was not satisfied.” Urban v. Shulkin, 2017 U.S. App. Vet, Claims LEXIS 1312 (Sept. 18, 2017). Based on the foregoing, the Board finds that the requirements for an extra-schedular evaluation for the Veteran’s service-connected depression under the provisions of 38 C.F.R. § 3.321 (b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996). Specifically, the first element of Thun has not been met, and thus, the required elements for extraschedular referral have not been satisfied. See Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (clarifying that although the Court in Thun identified three “steps,” they are, in fact, necessary “elements” of an extraschedular rating). Accordingly, the schedular criteria for the Veteran’s depressive disorder include consideration of occupational impairment, thus, any interference with employment is contemplated by the schedular criteria for evaluating psychiatric disabilities. The Veteran has not asserted additional symptoms that are not contemplated by the Schedule. Accordingly, entitlement to an extraschedular rating pursuant to 38 C.F.R. 3.321 is not warranted for the Veteran’s depression disability. The Board has considered the possibility of staged ratings and finds that the schedular ratings for the disabilities on appeal have been in effect for the appropriate period on appeal. Accordingly, any staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. Based on the evidence, the Board finds that Veteran’s major depression rises to the level of impairment required for a 70 percent rating. In sum, resolving doubt in the Veteran’s favor, the Board finds that a 70 percent rating, but no higher, for major depression is warranted from May 15, 2018. The evidence of record does not show that the Veteran’s major depression rises to the level of impairment required for a 100 percent rating. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Earlier Effective Date Unless Chapter 38 of the United States Code specifically provides otherwise, the effective date of an evaluation and grant 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 the later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. An earlier effective date may be granted prior to the date of the filing of the claim for a rating increase if it is ascertainable that an increase in disability occurred within one year prior to the filing of the claim. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). A “claim” is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1 (r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155 (b). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Veteran is seeking an earlier effective date for the award of service connection for tinnitus, glaucoma, and depression.   6. Entitlement to an earlier effective date for Depression. A review of the Veteran’s claim file shows that the rating decision in December 2015, granted service connection for depression effective December 11, 2012, the date the Veteran’s claim was received. The Veteran has offered no reason why the current effective date is not correct and why an earlier effective date is warranted. As indicated above, generally, the effective date for service connection is not based on the date a disability began, but rather on the date of receipt of the claim. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). After careful consideration, the Board finds that the entitlement to an earlier effective date for the grant of service connection for depression is not warranted. No communication, formal or informal, was received from the Veteran or his representative indicating an intent to claim service connection for this disability prior to December 11, 2011. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. Therefore, the appeal for an earlier effective date for a grant of service connection for this issue must be denied. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Entitlement to an earlier effective date for Tinnitus. A review of the claims file reveals that VA received the Veteran’s claim seeking service connection for tinnitus was received on December 16, 2011. The Veteran has offered no reason why the current effective date is not correct and why an earlier effective date is warranted. As indicated above, generally, the effective date for service connection is not based on the date a disability began, but rather on the date of receipt of the claim. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). After careful consideration, the Board finds that the entitlement to an earlier effective date for the grant of service connection for tinnitus is not warranted. No communication, formal or informal, was received from the Veteran or his representative indicating an intent to claim service connection for this disability prior to December 16, 2011. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. Therefore, the appeal for an earlier effective date for a grant of service connection for this issue must be denied. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. Entitlement to an earlier effective date for Glaucoma. A review of the claims file reveals that VA received the Veteran’s claim seeking service connection for glaucoma was received on December 20, 2012. As indicated above, generally, the effective date for service connection is not based on the date a disability began, but rather on the date of receipt of the claim. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). After careful consideration, the Board finds that the entitlement to an earlier effective date for the grant of service connection for glaucoma is not warranted. No communication, formal or informal, was received from the Veteran or his representative indicating an intent to claim service connection for this disability prior to December 16, 2011. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. Therefore, the appeal for an earlier effective date for a grant of service connection for this issue must be denied. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. There is no reasonable doubt to be resolved as to   this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs