Citation Nr: 18154678 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-31 695 DATE: November 30, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected bilateral recurrent tinnitus is denied. REMANDED Entitlement to service connection for TMJ and bruxism, to include as secondary to service-connected MDD and GAD is remanded. Entitlement to a rating in excess of 10 percent for service-connected degenerative arthritis (DA) of the lumbar spine with intervertebral disc syndrome (IVDS) is remanded. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) with hiatal hernia is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity (LLE) radiculopathy associated with DA of the lumbar spine with IVDS is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity (RLE) radiculopathy associated with DA of the lumbar spine with IVDS is remanded. Entitlement to a rating in excess of 50 percent for service-connected MDD and GAD is remanded. Entitlement to a compensable rating for service-connected binge eating disorder associated with MDD and GAD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 1, 2017 is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s bilateral tinnitus has been assigned a 10 percent rating, the maximum schedular rating authorized under Diagnostic Code 6260. CONCLUSION OF LAW There is no legal basis for the assignment of an initial schedular evaluation in excess of 10 percent for bilateral tinnitus; extraschedular consideration is not warranted. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the U.S. Army from September 1997 to June 2000. This case comes to the Board on appeal of a June 2016 rating decision. The Board notes that the Veteran filed a claim for a dental condition to include as secondary to his binge eating disorder. The claim was denied in a March 2010 rating decision and became final. Although the Veteran filed a claim to reopen, the Board notes that the claim for a TMJ disorder and bruxism, to include as secondary to the Veteran’s service-connected MDD and GAD is separate and distinct from the previously denied claim, therefore, it is a new claim not requiring new and material evidence. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). Increased Rating Claim Disability ratings are based on 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Id. In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the appeal, the assignment of staged ratings would be necessary. The Veteran bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Entitlement to an initial rating in excess of 10 percent for service-connected bilateral recurrent tinnitus The Veteran is seeking an increased rating for recurrent bilateral tinnitus. The RO assigned the Veteran a 10 percent rating for his tinnitus in June 2016, which is the maximum schedular allowance under Diagnostic Code 6260 and there is no provision for assignment of a separate 10 percent evaluation for tinnitus of each ear. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit found that 38 C.F.R. § 4.25 (b) and 38 C.F.R. § 4.87, DC 6260 limit a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus of 10 percent. 38 C.F.R. §4.87, DC 6260. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, the Veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Entitlement to service connection for TMJ and bruxism, to include as secondary to service-connected unspecified anxiety disorder (GAD) is remanded. Here, the Veteran was diagnosed with TMJ disorder and bruxism in a September 2014 VA examination. During the examination, the Veteran reported that he saw a private dentist recently and was told that his broken and cracked teeth were from his grinding and clenching of his teeth. He stated that he grinds his teeth because he is anxious. The Veteran did not report any discomfort or other symptomatology associated with bruxism beyond clenching and grinding tooth surfaces. He reported that he wears a sports mouth guard for sleeping. The examination revealed that the Veteran has mild bruxism as a TMJ condition causing less movement than normal bilaterally. After the examination, Dr. K.W. opined that the Veteran’s dental condition was less likely as not caused by or a result of his service-connected MDD and GAD. He reasoned that the Veteran’s only objective finding for mild bruxism were a maximum inter incisal distance of 38mm with 40 being considered normal and a 4-8 percent loss of enamel on select teeth which falls within expected for an individual of the age of the Veteran. Dr. K.W. continued that separately as an issue, the absent teeth 14 and 30 were never restored in service with definitive crowns and their subsequent loss cannot be excluded from the absence of in service definitive restorative care. Further, he added that tooth 18 is fractured but the excessive size of the restoration is more likely than not the cause of later failure. Lastly, dental caries diagnosed in teeth 23, 15 and 31 are not related to any diagnosis of bruxism. The Board finds the Dr. K.W.’s opinion to be inadequate. Dr. K.W. diagnosed the Veteran with TMJ disorder and bruxism, but Dr. K.W. failed to take into consideration the Veteran’s lay statements of teeth grinding and clenching due to his anxiety disorder. Dr. K.W.’s rationale failed to explain why the Veteran’s diagnoses of TMJ disorder and bruxism were not caused by or aggravated by his teeth grinding and clenching due to his GAD. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a remand is warranted for an addendum opinion. Manlincon Remand For the other issues on appeal, the Board finds that a Manlincon remand is warranted for issuance of statement of case (SOC). Specifically, the Veteran, through his attorney, filed a notice of disagreement in September 2017, contesting the July 2017 rating decision, which granted service connection for LLE radiculopathy, granted TDIU, established DEA, increased the evaluation of RLE radiculopathy to 20 percent, and maintaining the evaluations for MDD and GAD, DA of the lumbar spine, GERD, and the binge eating disorder. As it does not appear that the RO has taken any further action regarding those claims or acknowledged the Veteran’s NOD, these claims must be remanded for issuance of a statement of the case (SOC). See 38 C.F.R. §§ 19.9, 20.200, 20.201; Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records, including the most recent treatment records, and associate them with the claims file. All records and/or responses received should be associated with the claims file. 2. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran’s TMJ disorder and bruxism. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s TMJ disorder and bruxism is caused by his military service. (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s TMJ disorder and bruxism is caused by his service-connected MDD and GAD. (c.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s TMJ disorder and bruxism is aggravated (i.e. worsened beyond normal progression) by his service-connected MDD and GAD. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as “any increase in disability.” See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 3. If it is determined that the Veteran’s TMJ disorder and bruxism is aggravated beyond its natural progression by the Veteran’s MDD and GAD, please discuss whether the baseline level of severity of the TMJ disorder and bruxism is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level the Veteran’s TMJ disorder and bruxism. 4. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 5. The AOJ should issue a statement of the case (SOC) addressing: (a.) Entitlement to an initial rating in excess of 10 percent for service-connected LLE radiculopathy; (b.) Entitlement to an earlier effective date prior to January 1, 2017, for TDIU; (c.) Entitlement to a rating in excess of 20 percent for RLE radiculopathy; (d.) Entitlement to a rating in excess of 50 percent for service-connected MDD and GAD; (e.) Entitlement to a rating in excess of 10 percent for DA of the lumbar spine with IVDS; (f.) Entitlement to a rating in excess of 10 percent for GERD; and (g.) Entitlement to a compensable rating for binge eating disorder. (Continued on the next page)   6. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal. The AOJ should advise the Veteran that the appeal will not be returned to the Board for appellate consideration following the issuance of the SOC and SSOC unless he perfects his appeal. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Umo, Associate Counsel