Citation Nr: 18153145 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-46 382 DATE: November 27, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for a psychiatric disability is remanded. Entitlement to an increased disability rating for hearing loss is remanded. FINDING OF FACT For the entire rating period on appeal, bilateral tinnitus has been assigned the maximum schedular evaluation. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for service-connected tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.21, 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 until July 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2011 and January 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a disability rating in excess of ten percent for tinnitus The Veteran has appealed his initial 10 percent rating for tinnitus and contends that an evaluation in excess of 10 percent is warranted. Tinnitus is evaluated under Diagnostic Code 6260, which reflects that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2. The U.S. Court of Appeals for the Federal Circuit upheld VA’s interpretation of its regulations that only a single 10 percent rating is authorized for tinnitus. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Thus, as a matter of law, a rating higher than 10 percent may not be assigned for the Veteran’s tinnitus. Moreover, after careful review of the evidence, the Board finds no other diagnostic codes would be appropriate to evaluate the Veteran’s tinnitus. See Schafrath, 1 Vet. App. at 595. The Board considered the benefit of the doubt doctrine. However, the weight of the evidence is against the Veteran’s claim for a higher initial rating for bilateral tinnitus. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3 (2016). Finally, there is no indication that the collective impact or combined effect of multiple service-connected disabilities presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disability is remanded. A remand is necessary to adjudicate the Veteran’s claim for service connection for a psychiatric disability. At a July 2016 VA examination, the VA examiner diagnosed the Veteran with unspecified depressive disorder and alcohol use disorder. During the July 2016 examination, the Veteran told the examiner that he experienced depression and abused alcohol “before, during, and after” his active duty service, and that his symptoms of these disorders continue to the present. The examiner opined that the Veteran’s psychiatric disabilities were less likely than not incurred in or caused by his service. The examiner did not opine as to whether it was as least as likely as not that the Veteran’s active duty service exacerbated his psychiatric disabilities beyond their normal progression. Additional medical records indicate that the Veteran has been diagnosed with bipolar disorder. The Board notes that the Veteran’s May 1979 induction examination described the Veteran as normal in psychiatry and did not note any defects or diagnoses related to psychiatry. In other words, the Veteran is presumed sound. When the Veteran is presumed sound at entrance, the burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) in Horn v. Shinseki, explained that even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. 25 Vet. App. 231, 235 (2012). Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The clear-and-unmistakable-evidence standard is an “onerous” one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993). On remand, an addendum opinion should be obtained to determine whether the Veteran’s psychiatric disabilities were preexisting conditions and if so whether they were aggravated beyond their natural progression by an in-service injury, event, or illness. Additionally, a recent May 2018 opinion from R.W., Psy.D. suggests the condition was permanently aggravated by the service-connected disabilities; however, this fails to provide any baseline. See 38 C.F.R. § 3.310 (service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability). Accordingly, further opinion is necessary. 2. Entitlement to an increased disability rating for hearing loss is remanded. The Veteran last underwent a VA examination in November 2015. The Veteran has indicated that his hearing has worsened since his last VA examination. The Veteran’s medical records contain a notation in December 2015 that the Veteran had difficulty hearing. Given the evidence of potentially increased symptomatology of the Veteran’s service-connected hearing loss, as well as the length of time since the last VA examination, a new VA examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). As such, a new examination should be ordered to test whether the Veteran’s service-connected left ear hearing loss has increased in severity. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the relationship between the Veteran’s psychiatric disabilities and his active duty service. The examiner should provide an opinion as to the following: a) Did a psychiatric disability “clearly and unmistakably” (obviously or manifestly) exist prior to the Veteran’s entry into active duty in May 1979? b) If a psychiatric disability clearly and unmistakably existed prior to service, was it “clearly and unmistakably” (obviously or manifestly) not aggravated by military service? In this special context, “aggravation” has occurred where there is an increase in disability beyond the natural progress of the disability. c) If the answer to either question above is no, then answer whether it is “at least as likely as not” (50 percent or greater probability) that any current psychiatric disability was due to an inservice injury, event or disease? d) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that any current psychiatric disability is aggravated by her service-connected hearing loss and tinnitus or eye disability. For this question, the examiner is advised that aggravation means the service-connected disability caused an increase in the severity of an existing nonservice-connected disability beyond the natural progression of the disease. If aggravation is found, the examiner must attempt to establish the baseline level of severity of the psychiatric disability prior to aggravation by the service-connected disability. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected hearing loss. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. A notation to the effect that record review took place should be included in the examination report. All indicated studies should be performed. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Boal, Associate Counsel