Citation Nr: 18150227 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-34 808 DATE: November 14, 2018 ORDER A rating in excess of 10 percent for bilateral hearing loss is denied. A rating in excess of 10 percent for tinnitus is denied. Service connection for a back disorder is denied. Service connection for a bilateral hip disorder is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for aortic stenosis is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for an acquired psychiatric disorder, characterized as depression, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s hearing loss has been manifested by no worse than Level III hearing loss in the right ear and Level IV hearing in the left ear. 2. The 10 percent disability rating that is currently in effect is the maximum schedular rating for tinnitus. 3. The Veteran’s back disorder was not shown in service or for many years thereafter, and is not otherwise related to active duty service. 4. The Veteran’s bilateral hip disorder was not shown in service or for many years thereafter, and is not otherwise related to active duty service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.85, 4.86, DC 6100. 2. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, DC 6260. 3. The criteria for entitlement to service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 4. The criteria for entitlement to service connection for a bilateral hip disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1966 to March 1968. The Board notes that the Regional Office (RO) characterized the Veteran’s service connection claim for aortic stenosis as an application to reopen a previously denied heart disorder claim. However, a review of the previous rating decisions shows no express adjudication of such issue. Indeed, while an August 2007 code sheet lists aortic stenosis as a denied issue, this is in fact not discussed in the body of the corresponding rating decision, which was limited to consideration of increased ratings for hearing loss and tinnitus, as well as entitlement to a TDIU. Further, no other rating action could be found that expressly adjudicates aortic stenosis before the rating on appeal. Therefore, the issue will be addressed de novo, obviating the need for new and material evidence. The Board acknowledges that the Veteran filed a claim of service connection for depression. However, a service connection claim that describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, as reflected in the title page, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board observes that the RO received new medical treatment records that were not previously considered in its last SOC. However, a review of these records reveals that the vast majority of them are irrelevant, and that to the extent there are relevant records, these records were previously on file, or are redundant and/or cumulative of the records already on file. As a result, there is no prejudice to the Veteran for the Board to consider these records in the first instance and a remand for the RO’s initial consideration of this evidence is not required. 38 C.F.R. § 20.1304(c). The Board notes that given the absence of in-service evidence of chronic manifestations of symptoms related to back and hip disorders, and no evidence of these disorders until many years after service, a VA examination is not warranted for these disorders. 38 C.F.R. § 4.2; cf. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr, 21 Vet. App. 303 (2007). Indeed, the available records and medical evidence is sufficient to make an adequate determination as to these claims. The Veteran’s claims of service connection for sleep apnea and a psychiatric disorder were remanded by the Board in March 2017. As discussed below, the Board is again remanding these issues for further development. Increased Rating The Veteran is seeking increased ratings for his service-connected bilateral hearing loss and tinnitus. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a compensable rating for bilateral hearing loss In this case, the Veteran’s bilateral hearing loss has been assigned a 10 percent rating under 38 C.F.R. § 4.85, DC 6100. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through level XI, representing profound deafness. See 38 C.F.R. § 4.85. Additionally, the schedule considers the effect of the Veteran’s hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447 (2007). An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). After a review of the record, the Board determines that a rating in excess of 10 percent is not warranted at any point during the period on appeal. Specifically, at a VA examination in February 2014, the Veteran stated that he has difficulty hearing without his hearing aids. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: Tonal Thresholds (In Hertz) 1000 2000 3000 4000 Average Right 40 55 95 95 71 Left 35 50 100 100 71 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 80 percent in the left ear. Applying these values to Table VI, the Veteran exhibits Level III hearing loss in the right ear and Level IV hearing loss in the left ear. Therefore, when applying these levels to Table VII, a rating in excess of 10 percent rating is not warranted. Further, the file contains no other audiometric results during the relevant period for consideration. 2. Entitlement to a rating in excess of 10 percent for tinnitus The Veteran asserts that he is entitled to an initial rating in excess of 10 percent for his service-connected tinnitus. The Board finds that the Veteran has been assigned a 10 percent rating which is the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, Diagnostic Code 6260. Further, under Diagnostic Code 6260 there is no provision for assignment of an increased schedular rating or a separate 10 percent evaluation for tinnitus of each ear. Therefore, the Board finds that a disability rating in excess for 10 percent for tinnitus is not warranted. The Board has also considered the Veteran’s statements, including his testimony from his Board hearing, that his hearing loss and tinnitus are worse than the ratings he receives. Martinak v. Nicholson, 21 Vet. App. 447 (2007). As such, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms of hearing loss and tinnitus, because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of his disorders according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disorders have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017), the Court recently held that the schedular rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure. In other words, VA's schedular rating criteria for hearing loss already contemplate the specific functional effects of hearing impairment. Id. Accordingly, the Board finds that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in VA's Rating Schedule. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Service Connection 3. Entitlement to service connection for a back disorder 4. Entitlement to service connection for a bilateral hip disorder The Veteran generally asserts that his back and bilateral hip disorders are related to his active service. With respect to the Veteran’s back and bilateral hip disorders, the Board concludes that while the Veteran has a current diagnosis of these disorders, the preponderance of the evidence weighs against finding that any of them began during service or are otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. In this case, the service treatment records are silent for any complaints, symptoms, or a diagnosis relating to these disorders. Of note, the Veteran’s January 1968 separation examination does not report any complaints or a diagnosis related to a back and/or hip disorder. Next, the Veteran’s post-service medical evidence does not reflect symptoms of these disorders until many years after service. Specifically, the records report that the Veteran had symptoms of hip and back pain since approximately 2009 and 2011, respectively, with a diagnosis of osteoarthritis in 2012. Therefore, continuity of symptomatology has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes the statements from the Veteran regarding his history of symptoms since service. While he is competent to report that he experienced symptoms, including pain, limitation of motion, and weakness since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent the Veteran asserts that his disorders have persisted since service, the Board determines that the Veteran’s reported history of continued symptoms while competent, is nonetheless not probative in establishing a relationship between service and his complaints on appeal. As an initial matter, the large gap in treatment for these disorders weighs against the Veteran’s claims. Moreover, the Veteran’s VA treatment records, including from March 1997, October 2011, October 2012, and April 2015, contradict the Veteran’s assertions that his symptoms have persisted since service. Although the Veteran is not competent to diagnosis and provide etiological opinions related to the disorders on appeal, service connection may nonetheless be established if a relationship may be otherwise established by competent evidence, including medical evidence and opinions. Here, the VA treatment records from October 2011, October 2012, and November 2017 indicate that the onset of his back and hip disorders occurred over 30 years after service and were due in part to his prior job duties working in construction and a post-service fall. Additionally, the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence to establish a nexus between his complaints and active service. Specifically, the Board observes that the appellant’s attorney has not presented argument regarding the issue of entitlement to service connection a back or bilateral hip disorder, although he has submitted argument with respect to other issues not on appeal. See 38 U.S.C. § 5107 (a) (2012) (noting that it is a claimant’s responsibility to support a claim for VA benefits). Given the state of the record, there has arisen no duty to provide an examination on these matters. McLendon v. Nicholson, 20 Vet. App. 79 (2006) As part of this claim, the Board recognizes the statements from the Veteran regarding the relationship between his disorders and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology such as pain, limitation of motion, and weakness, he is not competent to provide a nexus opinion in this case. These issues are also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against his claims for service connection, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. 2. Entitlement to service connection for an acquired psychiatric disorder, characterized as depression, is remanded. With respect to these issues, in an October 2018 correspondence, the Veteran’s attorney identified numerous relevant and material treatment records and opinions from the Veteran’s private medical providers. However, it does not appear that these records have been obtained and/or associated with the file. Therefore, on remand, the RO should attempt to obtain and/or associate these records with the claims file. Additionally, if the RO obtains any new records which indicate the Veteran’s psychiatric disorder and sleep apnea may be related to service, to include as secondary to and/or aggravated by a service-connected disability, the RO should obtain a VA examination to determine the etiology of these disorders. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for COPD is remanded. 4. Entitlement to service connection for aortic stenosis is remanded. The Veteran has asserted that his COPD and aortic stenosis are related to active service. The Board notes that the January 1968 service treatment records reflect that the Veteran may have had a heart murmur during service. Therefore, as the Veteran has a current diagnosis of aortic stenosis, a VA examination is warranted to determine the etiology of his aortic stenosis. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Board observes that the Veteran’s post-service treatment records, including from March 1997, indicate that he had a long history of COPD that may be related to service. As such, a VA examination is also warranted to determine the etiology of his COPD. See McLendon, 20 Vet. App. 79. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board notes that in an October 2018 correspondence, the Veteran asserts that he is unemployable in part due to his service-connected hearing loss and tinnitus. Therefore, as the Veteran is seeking increased ratings for bilateral hearing loss and tinnitus, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. As a result, TDIU has been raised by the record and the RO must develop and adjudicate this issue. The matter is REMANDED for the following action: 1. Obtain all treatment records that are available from the VA Medical Center in Denver, Colorado, as well as from any VA facility from which the Veteran has received treatment since June 2018. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the medical records of such treatment. Specifically, the RO should attempt to obtain all private medical treatment records identified in the Veteran’s October 2018 correspondence. If these records are unable to be obtained, a formal finding of unavailability should be prepared and associated with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his COPD and aortic stenosis. For each disorder, the examiner must state whether it is at least as likely as not related to active service. The claims file must be reviewed, including the new records, and such review should be noted in the opinion. Additionally, if the RO receives new records which indicate a diagnosis and a relationship between the Veteran’s psychiatric disorder and/or sleep apnea, and active service, to include as secondary to and/or aggravated by a service connected disability, then schedule the Veteran for a VA examination to determine the nature and etiology of these disorders. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria have been met and opine whether it is at least as likely as not related to an in-service stressor (identifying the specific stressor). The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s disorders are related to the Veteran’s period of service, to include as secondary to and/or aggravated by a service-connected disability. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The RO should undertake any other development deemed necessary in order to adjudicate the TDIU claim, including obtaining any VA examinations or opinions. If TDIU is denied, advise the Veteran of this and of his procedural and appellate rights. If he files a timely notice of disagreement and, after receiving a statement of the case, also files a timely substantive appeal (VA Form 9 or equivalent), then return this derivative claim to the Board for further appellate consideration. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel