Citation Nr: 18153141 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-54 788 DATE: November 28, 2018 ORDER Entitlement to service connection for a left middle finger disorder is denied. Entitlement to service connection for loss of vision is denied. Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a psychiatric disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a higher initial disability rating for migraine headaches, rated as noncompensable prior to July 12, 2017, and 50 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s left middle finger disorder did not manifest during service and is not otherwise causally related to service. 2. The Veteran’s loss of vision did not manifest during service and is not otherwise causally related to service. 3. The Veteran’s hearing impairment is no worse than Level 1 in either ear. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a left middle finger disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for establishing entitlement to service connection for loss of vision have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for an initial compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Army from February 2003 to February 2004 with additional service in the Army National Guard. The scope of a mental health disability claim generally includes any psychiatric disorder that may reasonably be encompassed by a veteran’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board finds that the Veteran’s claim should encompass all mental health diagnoses made during the pendency of the appeal, and has recharacterized the Veteran’s claim to better reflect the medical evidence. During the course of the appeal, the Veteran also disagreed with the 10 percent disability rating awarded for his tinnitus disability. In June 2017, the Veteran withdrew his claim for entitlement to an increased rating for tinnitus. Therefore, the issue is not currently before the Board and will not be discussed herein. Additionally, the Veteran appealed the issue of service connection for a low back disorder. In a July 2017 rating decision, the Regional Office (RO) granted service connection for lumbar myositis and spondylosis with discogenic disease L5-L5, L5-S1, degenerative arthritis of the spine and assigned a 40 percent evaluation effective March 10, 2015. As this represents a full grant of the benefit sought, that issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Furthermore, the Veteran has not expressed disagreement with either the disability evaluation or effective date assigned. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. A claim for TDIU has been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service treatment records are not available in this case. Where a veteran’s service treatment records are unavailable through no fault of his own, there is a “heightened duty” to assist him in the development of the case, to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). Case law, however, does not establish a heightened “benefit of the doubt,” only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the Veteran in developing a claim, and to explain its decision when the Veteran’s medical records have been lost. See Ussery v. Brown, 8 Vet. App. 64 (1995). 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; 38 C.F.R. § 3.102; 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. Service Connection Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 1. Entitlement to service connection for a left middle finger disorder. 2. Entitlement to service connection for loss of vision. The Veteran asserts that service connection is warranted for a left middle finger disorder and loss of vision. As noted above, the Veteran’s service treatment records are missing. August 2015 VA treatment records documented the Veteran’s complaints of a painful trigger finger. Physical examination revealed joint pain or swelling of the 3rd finger. The diagnosis included 3rd left hand trigger finger. A July 2017 VA optometry note showed that the Veteran presented with blurred vision and visual loss of the left eye. The assessment was left refractive amblyopia, bilateral presbyopia, and anisometropia. The optometrist ordered eyeglasses for the Veteran. The Board finds that service connection is not warranted for a left middle finger disorder or loss of vision. With the exception of filing a claim, the Veteran has not offered any details regarding how his left middle finger disorder and loss of vision are related to service. Although the Veteran’s service treatment records are missing, he has not asserted that he was treated for any of the disorders during service. While the Veteran believes that his left middle finger disorder and loss of vision of are related to service, there is no indication that the Veteran has had any specialized education, training, or experience to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the diagnosis or etiology of the disorders is a matter that is not capable of lay observation, and requires medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his left middle finger disorder and loss of vision of is not competent medical evidence. In conclusion, the Board finds that service connection for a left middle finger disorder and loss of vision is not warranted. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 ; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 3. Entitlement to an initial compensable rating for bilateral hearing loss. Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c). “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85 (d). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85 (e). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. (b) When the puretone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. By way of background, the Veteran was initially awarded service connection for bilateral hearing loss in the January 2016 rating decision under appeal. A noncompensable evaluation was assigned, and the Veteran appealed the rating decision. In response to his claim for service connection, the Veteran was provided a VA audiological examination in September 2015. The examiner noted that the Veteran’s hearing loss did not impact ordinary conditions of daily life, including his ability to work. At the time of the examination, his puretone thresholds were as follows:   1000 2000 3000 4000 Average Right 15 30 40 40 31.25 Left 15 25 40 40 30 Speech recognition ability was measured at 100 percent in each ear. The examiner diagnosed bilateral sensorineural hearing loss. Applying those values to the rating criteria results in a numeric designation of Level I in the right ear and Level I in the left ear. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating. The Veteran was afforded another VA examination in July 2017. The examiner noted that the Veteran’s hearing loss did not impact ordinary conditions of daily life, including his ability to work. At the time of the examination, his puretone thresholds were as follows: 1000 2000 3000 4000 Average Right 15 25 35 35 27.5 Left 10 20 40 40 27.5 Speech recognition ability was measured at 100 percent in each ear. Applying those values to the rating criteria results in a numeric designation of Level I in the right ear and Level I in the left ear. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating. There are no other audiogram reports of record showing the Veteran to have hearing impairment worse than that reported at the VA audiology evaluations of record. The Veteran’s bilateral hearing loss disability has not been shown to be worse than Level I in either ear. Those results fall within the schedular criteria for a 0 percent rating. Therefore, the criteria for an initial compensable rating have not been met. 38 C.F.R. § 4.85, Diagnostic Code 6100. When the pure tone decibel loss values are 55 or greater at 1000 Hertz, 2000 Hertz, 3000 Hertz, and 4000 Hertz in either ear, or 30 or less at 1000 Hertz and 70 or more at 2000 Hertz, the criteria for exceptional patterns of hearing impairment must be considered. 38 C.F.R. § 4.86(a) and (b). However, none of the examination results dated during the entire appeal period reflect an exceptional pattern of hearing impairment in either ear; as such, the criteria in 38 C.F.R. § 4.86(a) or (b) do not apply. If an exceptional case arises where a rating based on the disability rating schedule is found to be inadequate, consideration of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). However, an extraschedular analysis is not required in every case. When extraschedular consideration is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted.” Yancy v. McDonald, 27 Vet. App. 484, 494 (2016); see also Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances to raise the extraschedular issue). Here, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disorder is remanded. The Veteran asserts that he developed a psychiatric disorder as a result of in-service events that occurred in Guantanamo Bay, Cuba. An August 2015 VA psychiatric consult showed that the Veteran sought psychiatric treatment secondary to economic issues. He stated that he had nightmares about Guantanamo Bay and that he experienced hallucinations. The assessment was depression. In September 2015 and October 2015, the Veteran described an incident during which a prisoner attacked him with feces and pushed him against the wall. He stated that the prisoners used psychological attacks against him. He reported that he experienced nightmares about hanging himself, killing people, and death threats. He explained that he received daily death threats when he was at Guantanamo Bay. The Veteran was afforded a VA examination in December 2015. The examiner found that the Veteran did not meet the diagnostic criteria for PTSD. The diagnosis was adjustment disorder with depressed mood. He continued to describe his experiences at Guantanamo Bay. He also stated that he attempted suicide multiple times, including in 2006. He stated that he was taken to the hospital at that time. The examiner opined that it was less likely than not that his adjustment disorder was incurred in or caused by service. The examiner explained that his adjustment disorder was secondary to economic difficulties, as reported by the Veteran to the VA in August 2015. July 2017 VA treatment records suggested that his pain impacted his psychiatric disorder. In September 2018, the Veteran’s representative explained that his financial issues were overshadowing his other symptoms and that his in-service traumatic experiences contributed to his financial issues. The Board finds that the December 2015 VA medical opinion is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Initially, the Board notes that the examiner attributed the Veteran’s psychiatric disorder to his financial problems; however, the examiner did not consider and discuss the impact that his in-service experiences had on his mental health. In addition, the VA treatment records suggest that the psychiatric disorder is secondary to pain. The Board notes that the Veteran is service-connected for hearing loss, tinnitus, migraines, a lumbar spine disorder, and bilateral lower extremity radiculopathy. Therefore, a remand is warranted to address direct and secondary service connection. On remand, the RO must also attempt to obtain the 2006 private treatment records regarding his suicide attempt in 2006. 2. Entitlement to service connection for hypertension is remanded. As noted above, the Veteran’s service treatment records are missing. During a September 2015 VA examination, the Veteran stated that his retirement examination report documented high blood pressure. He reported that a diagnosis of hypertension was confirmed in 2004 by his private physician, Dr. Garcia. As it appears that the Veteran’s hypertension had its onset during active duty service, the Board finds that a remand is required to obtain another VA medical opinion. Furthermore, his 2004 private treatment records from Dr. Garcia have not been associated with the electronic claims file. On remand, the RO must attempt to obtain the 2004 private treatment records from his private physician. 3. Entitlement to a higher initial disability rating for migraine headaches, rated as noncompensable prior to July 12, 2017, and 50 percent thereafter is remanded. The Veteran asserts that he is entitled to a higher disability rating for his migraine headaches. The evidence of record contains two VA examinations reports assessing the severity of the Veteran’s migraine headaches. Notably, the symptomatology noted in the July 2017 VA examination report appears to be more severe than the symptoms noted in the September 2015 VA examination report that was completed less than two years prior. For example, the September 2015 VA examination report noted pulsating or throbbing head pain, nausea, and sensitivity to light. The examiner found that the symptoms lasted one hour and did not impact his ability work. By the time of the July 2017 VA examination, the Veteran experienced the above noted symptoms in addition to vomiting, sensitivity to sound, changes in vision, and very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The examiner noted that his symptoms lasted less than a day, the attacks occurred once a month, and his migraines impacted his ability to work. The electronic claims file does not contain any other evidence regarding the severity of the Veteran’s migraine headaches during this period. Accordingly, the Board finds that a remand is required to obtain another VA examination to determine the current severity of the Veteran’s migraines. 4. Entitlement to a TDIU is remanded. The TDIU claim is intertwined with the increased rating claim remanded herein. Thus, the Board will defer its decision on the TDIU claim until the claim for entitlement to a higher rating for the migraine headache disorder is resolved. The matter is REMANDED for the following actions: 1. The Agency of Original Jurisdiction (AOJ) should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include the Veteran’s 2004 private treatment records from Dr. Garcia and the 2006 treatment records from his suicide attempt. 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. Thereafter, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s psychiatric disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner must identify all psychiatric disorders present during the period of the claim. Following an examination of the Veteran and a thorough review of the record, the examiner is requested to provide an opinion as to the following: (a) With respect to each such disorder, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder originated during the Veteran’s period of active service or is otherwise etiologically related to his active service. (b) With respect to each such disorder, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder was caused or aggravated by any of the service-connected disorders. The examiner must provide a complete rationale for all opinions expressed. If the examiner is unable to provide any requested opinions, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s hypertension. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. All pertinent evidence of record must be made available to and reviewed by the examiner. Following an examination of the Veteran, and a thorough review of the record, the examiner is requested to provide an opinion as to whether there is a 50 percent or better probability that the disability originated during the Veteran’s period of active service or is otherwise etiologically related to his active service. The examiner must consider and discuss the Veteran’s lay statements that his retirement physical noted high blood pressure and that his private physician confirmed hypertension in 2004. The examiner must provide a complete rationale for all opinions expressed. If the examiner is unable to provide any requested opinions, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Then, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the current severity of the Veteran’s service-connected migraine headache disorder. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. The AOJ should ensure that the examiner provides all information required for rating purposes. 5. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. L. Chu Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel