Citation Nr: 18153120 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-56 200 DATE: November 28, 2018 ORDER Entitlement to an effective date prior to December 18, 2014 for the grant of service connection for obstructive sleep apnea, with asthma is denied. Entitlement to an effective date prior to December 18, 2014 for the grant of service connection for undifferentiated and rheumatoid arthritis of the bilateral wrists, hands, knees, and feet, with gout is denied. Entitlement to an effective date prior to December 18, 2014 for the grant of service connection for left foot hallux valgus is denied. Entitlement to an effective date prior to December 18, 2014 for the grant of service connection for right foot hallux valgus is denied. Entitlement to an effective date prior to December 18, 2014 for the grant of service connection for right foot hammer toe is denied. Entitlement to an effective date prior to December 18, 2014 for the grant of service connection for left shoulder impingement syndrome is denied. Entitlement to an effective date prior to December 18, 2014 for the grant of service connection for left ear hearing loss is denied. Entitlement to an effective date prior to December 18, 2014 for the grant of service connection for tinnitus is denied. Entitlement to an effective date prior to December 18, 2014 for the grant of service connection for intervertebral disc syndrome, lumbar spine is denied. Entitlement to an effective date prior to December 18, 2014 for the grant of service connection for essential hypertension is denied. Entitlement to an effective date prior to December 18, 2014 for the grant of service connection for erectile dysfunction is denied. Entitlement to an effective date prior to December 18, 2014 for the grant of special monthly compensation, based on the loss of use of a creative organ is denied. Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to an initial disability rating in excess of 50 percent for obstructive sleep apnea with asthma is remanded. Entitlement to an initial disability rating in excess of 40 percent for undifferentiated and rheumatoid arthritis of the bilateral wrists, hands, knees, and feet, with gout is remanded. Entitlement to an initial disability rating in excess of 20 percent for left shoulder impingement syndrome is remanded. Entitlement to an initial disability rating in excess of 10 percent for left foot hallux valgus is remanded. Entitlement to an initial disability rating in excess of 10 percent for right foot hallux valgus is remanded. Entitlement to an initial disability rating in excess of 10 percent for right foot hammer toe is remanded. Entitlement to an initial compensable disability rating for left ear hearing loss is remanded. Entitlement to an initial compensable disability rating for essential hypertension is remanded. Entitlement to an initial compensable disability rating for erectile dysfunction is remanded. Entitlement to service connection for a separate left knee disability other than undifferentiated and rheumatoid arthritis is remanded. Entitlement to service connection for a separate right knee disability other than undifferentiated and rheumatoid arthritis is remanded. Entitlement to service connection for a right ear hearing loss disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression is remanded. Entitlement to service connection for chronic kidney disease is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran submitted pre-discharge claims for entitlement to service connection for obstructive sleep apnea with asthma, arthritis, bilateral hallux valgus, hammer toe, a left shoulder disability, hearing loss, tinnitus, a lumbar spine disability, hypertension, and erectile dysfunction; these claims, as well as entitlement to special monthly compensation were granted effective December 18, 2014, which was the day following the Veteran’s discharge from active duty. 2. The Veteran’s service-connected tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260 (2018). CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to December 18, 2014 for the grant of service connection for obstructive sleep apnea, with asthma have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 2. The criteria for entitlement to an effective date prior to December 18, 2014 for the grant of service connection for undifferentiated and rheumatoid arthritis of the bilateral wrists, hands, knees, and feet, with gout have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 3. The criteria for entitlement to an effective date prior to December 18, 2014 for the grant of service connection for left foot hallux valgus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 4. The criteria for entitlement to an effective date prior to December 18, 2014 for the grant of service connection for right foot hallux valgus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 5. The criteria for entitlement to an effective date prior to December 18, 2014 for the grant of service connection for right foot hammer toe have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 6. The criteria for entitlement to an effective date prior to December 18, 2014 for the grant of service connection for left shoulder impingement syndrome have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 7. The criteria for entitlement to an effective date prior to December 18, 2014 for the grant of service connection for left ear hearing loss have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 8. The criteria for entitlement to an effective date prior to December 18, 2014 for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 9. The criteria for entitlement to an effective date prior to December 18, 2014 for the grant of service connection for intervertebral disc syndrome, lumbar spine have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 10. The criteria for entitlement to an effective date prior to December 18, 2014 for the grant of service connection for essential hypertension have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 11. The criteria for entitlement to an effective date prior to December 18, 2014 for the grant of service connection for erectile dysfunction have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 12. The criteria for entitlement to an effective date prior to December 18, 2014 for the grant of special monthly compensation, based on the loss of use of a creative organ have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 13. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2018); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist As a preliminary matter the Board notes that, with respect to the Veteran’s claims for an increased rating for tinnitus and entitlement to earlier effective dates, the pertinent facts in this case are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claims, and no further action is required to comply with VA’s duties to notify and assist. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria-Effective Dates Generally, the effective date of an award of disability compensation based on an original claim for service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Legal Criteria-Disability Ratings Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2018). The percentage ratings 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 a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. 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 are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Factual Background and Analysis Earlier Effective Date Claims The record shows the Veteran submitted an original claim for service connection for obstructive sleep apnea with asthma, arthritis, bilateral hallux valgus, hammer toe, a left shoulder disability, hearing loss, tinnitus, a lumbar spine disability, hypertension, and erectile dysfunction in April 2014. This was a pre-discharge claim, which was submitted under the integrated disability evaluation system (IDES) process while the Veteran was undergoing medical evaluation board proceedings. Following his discharge from active duty on December 17, 2014, the RO issued a January 2015 rating decision, which granted service connection for the above-noted disabilities, as well as entitlement to special monthly compensation. Each of these benefits were granted effective December 18, 2014, which was the day following the Veteran’s discharge from active duty. The Veteran expressed disagreement with the assigned effective dates. Though the Veteran had prior periods of active duty, there is no indication he ever initiated a claim for benefits until April 2014. At that time, the Veteran was on active duty, and as such, VA benefits were not authorized as a matter of law. Therefore, the day following release from active duty constituted the earliest date the above-noted benefits were warranted. Accordingly, the claims for entitlement to earlier effective dates must be denied. Increased Rating-Tinnitus The Veteran was awarded service connection and a 10 percent rating for tinnitus in a January 2015 rating decision. The originating agency denied the Veteran’s request for a higher rating because the maximum schedular rating authorized for tinnitus is 10 percent. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the Court held that the pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to VA’s interpretation of its own regulations, 38 C.F.R. § 4.25 and Diagnostic Code 6260, which limit a veteran to a single 10 percent disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran’s service-connected tinnitus is evaluated as 10 percent disabling, which is the maximum schedular rating available for such disability. See 38 C.F.R. §4.87, Diagnostic Code 6260 (2018). As there is no legal basis upon which to award a separate schedular evaluation for tinnitus in each ear or a higher schedular rating for tinnitus, the Veteran’s claim for such a benefit is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND The Board is of the opinion that additional development is required before the remaining claims on appeal are decided. Increased Ratings In numerous correspondence the Veteran, his family, and friends have asserted his service-connected disabilities are worse than currently evaluated. He most recently underwent a VA examination to assess his disabilities in June 2014. Further, in October 2017 the Veteran initiated a claim for entitlement to a TDIU rating on the basis of his service-connected disabilities. In support of his claim, the Veteran has provided records from the Social Security Administration, which indicate he was found unable to secure or maintain gainful employment. As there is evidence of a worsening of the disabilities since the last VA examinations, which were performed several years ago, the claims must be remanded for new examinations to determine the current severity of the disabilities. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). With respect to the issue of entitlement to a TDIU rating, the Board observes that, to date, the RO has not initially adjudicated this matter. Though it appears this issue is intrinsically intertwined with the above-noted appellate issues, the Board nonetheless finds the RO should issue an initial determination of this matter on remand given that the Veteran’s increased rating claims are being remanded for further development. Non-Jurisdictional Appeals Finally, in a rating decision dated March 15, 2016, the RO denied the Veteran’s claims for entitlement to service connection for an acquired psychiatric disorder and chronic kidney disease. The Veteran filed a timely notice of disagreement (NOD) as to those determinations on March 13, 2017. Additionally, by way of a March 21, 2017 rating decision, the RO denied entitlement to service connection for a separate bilateral knee disability other than undifferentiated and rheumatoid arthritis and right ear hearing loss. The Veteran initiated a timely NOD as to those determinations in April 2017. The record does not show that the AOJ has furnished a statement of the case (SOC) in response to these notices of disagreement. The Board must remand the above-noted issue for the AOJ to furnish a SOC. See 38 C.F.R. § 19.9 (c) (2017); see also Manlincon v. West, 12 Vet. App. 238 (1999). On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, these matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, a SOC on the issues of entitlement to service connection for an acquired psychiatric disorder, chronic kidney disease, a separate bilateral knee disability other than undifferentiated and rheumatoid arthritis, and right ear hearing loss should be issued to the Veteran and his representative. The Veteran should be informed of the requirements to perfect an appeal with respect to these issues. If the Veteran perfects an appeal with respect to these issues, the RO should ensure that all indicated development is completed before the case is returned to the Board. 3. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected obstructive sleep apnea with asthma, arthritis, bilateral hallux valgus, hammer toe, left shoulder, hearing loss, lumbar spine, hypertension, and erectile dysfunction disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments with regard to the Veteran’s orthopedic disorders. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct any required testing or concludes that any required testing is not necessary, he or she should be directed to clearly explain why that is so. 4. Thereafter, initially adjudicate the issue of entitlement to a TDIU rating. 5. Finally, undertake any other development determined to be warranted, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel