Citation Nr: 18156467 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-02 963 DATE: December 10, 2018 ORDER Service connection for a sleep disorder, to include sleep apnea and as secondary to posttraumatic stress disorder (PTSD), is denied. Service connection for bilateral hearing loss is denied. Service connection for a low back disorder manifested by pain is granted. Service connection for a left knee disability is denied. Service connection for a right knee disability, to include meniscal tear, is denied. An initial rating of 50 percent, but no greater, for PTSD prior to November 12, 2015, is granted. A rating of 70 percent, but no greater, for PTSD beginning November 12, 2015, is granted. An initial rating in excess of 10 percent for atrial fibrillation is denied. A rating in excess of 10 percent for left ankle injury residuals is denied. A compensable rating for left hand middle finger fracture residuals is denied. A rating in excess of 10 percent for tinnitus is denied. A total disability rating for individual unemployability due to service-connected disabilities (TDIU) is denied. Special monthly compensation (SMC) based on the need for aid and attendance or being housebound is denied. Eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, is denied. FINDINGS OF FACT 1. The Veteran did not have a sleep disorder to include sleep apnea, bilateral hearing loss, or a left knee disability at the time of his November 2012 or August 2015 claim for benefits, and has not had one at any time since. 2. The Veteran has a low back disorder manifested by pain, related to his duties in service. 3. No right knee disability, to include meniscal tear, began during service or is related to service in any other way. 4. Prior to November 12, 2015, the Veteran’s PTSD approximated occupational and social impairment with reduced reliability and productivity, due to such symptoms as depressed mood, marked anxiety, suspiciousness, hypervigilance, and chronic sleep impairment, disturbances of motivation and mood, and thoughts of death. 5. Beginning November 12, 2015, the Veteran’s PTSD has approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as impaired impulse control (such as unprovoked irritability) and an inability to establish and maintain effective relationships. 6. The Veteran’s atrial fibrillation approximates, at most, one to four documented episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia. 7. The Veteran’s left ankle injury residuals most closely approximates moderate limitation of motion of the ankle. 8. The Veteran’s left hand middle finger fracture residuals, at most, approximate limitation of motion with a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and extension limited by no more than 30 degrees. 9. The Veteran’s tinnitus is not productive of any disability warranting compensation beyond the maximum 10 percent schedular rating. 10. The Veteran is not unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 11. The Veteran is not so helpless as to be in need of regular aid and attendance, and is not permanently housebound, as a result of his service-connected disabilities. 12. The Veteran’s service-connected disabilities do not result in loss or loss of use of a hand or foot, permanent impairment of both eyes, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of a knee or hip. CONCLUSIONS OF LAW 1. The criteria for service connection for a sleep disorder, to include sleep apnea, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.385. 3. The criteria for service connection for a low back disorder manifested by pain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317. 5. The criteria for service connection for a right knee disability, to include meniscal tear, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. 6. The criteria for an initial rating of 50 percent, but no greater, for PTSD prior to November 12, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 7. The criteria for a rating of 70 percent, but no greater, for PTSD beginning November 12, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 8. The criteria for an initial rating in excess of 10 percent for atrial fibrillation prior have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7010. 9. The criteria for a rating in excess of 10 percent for left ankle injury residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 10. The criteria for a compensable rating for left hand middle finger fracture residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229. 11. There is no legal basis for the assignment of a rating in excess of 10 percent for bilateral tinnitus. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b), 4.87, Diagnostic Code 6260. 12. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 13. The criteria for SMC based on the need for regular aid and attendance or by reason of being permanently housebound have not been met. 38 U.S.C. § 1114(l), (s); 38 C.F.R. §§ 3.350(b), (i), 3.352(a). 14. The criteria for eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, have not been met. 38 U.S.C. § 3901, 3902, 5107; 38 C.F.R. § 3.808, 3.350(a)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to March 1992. This appeal is before the Board of Veterans’ Appeals (Board) from June 2013 and January 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). I. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran’s service connection claims in this case must be denied. Initially, regarding his claimed sleep disorder to include sleep apnea, bilateral hearing loss, back disability, and left knee disability, the weight of the evidence shows that no current disability exists for which service connection granted. A. A sleep disorder, to include sleep apnea Service treatment records reflect that in December 1991 the Veteran reported “some difficulty sleeping” and being told by his spouse that he jumped in his sleep. He was assessed with normal reaction to stress. At the time of his examination for separation from service in January 1992, the Veteran reported having frequent trouble sleeping after coming back from the war, waking up 2 to 3 times per night, and that this had happened approximately once a week. Post-service records reflect no diagnosis or treatment of sleep apnea or any clinical sleep disorder. In January 2011, he denied fatigue, sleepiness, or sleep problems. The Veteran was given a VA sleep apnea examination in November 2015. After examining the Veteran and reviewing the record, the examiner determined that the Veteran did not have sleep apnea. The examiner explained that neither the service nor post-service records revealed any evidence of diagnosis or treatments related to obstructive sleep apnea. While the Veteran—as reflected in his August 2015 claim and March 2016 notice of disagreement—has asserted having a “sleep disease” and “sleep apnea due… to PTSD,” there is no competent evidence contradicting the November 2015 VA opinion or otherwise supporting the existence of sleep apnea or any other clinical sleep disorder. To the extent that that the Veteran might have any sleeping problems in connection with his psychiatric disability, such problems are contemplated in his current rating for such service-connected disability, as discussed below. B. Bilateral hearing loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The only competent audiological evidence of the Veteran’s hearing is a November 2015 VA examination report revealing that, on examination, the Veteran did not have auditory threshold in any of the above frequencies greater than 20, and speech recognition scores using the Maryland CNC Test were 100 percent bilaterally. There is no audiological evidence contradicting the November 2015 VA examination results or otherwise showing the Veteran’s hearing is worse than shown on that examination, and the Veteran has not identified any such evidence. Thus, the evidence shows that the Veteran does not have any hearing loss disability for VA service connection purposes. C. A left knee disability The record does not contain competent evidence of any left knee findings, treatment, or diagnoses. Rather—such as in a May 2012 letter from the a private physician, Dr. N.O.—the Veteran has been specifically noted to have problems related to his right knee, as opposed to his left. Similarly, while findings on June 2013 VA examination revealed right knee pathology and diagnosis, examination of the left knee was normal, and no diagnosis was given. Moreover, the Veteran has provided no evidence or explanation of the nature of any left knee disability, or how it might be related to service. D. Summation for sleep disorder, hearing loss, and left knee disability Thus, the weight of the evidence reflects that the Veteran did not have a sleep disorder to include sleep apnea, bilateral hearing loss, or a left knee disability at the time of his November 2012 or August 2015 claim for benefits, and has not had one at any time since. Therefore, there can be no valid service connection claim for any such disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, service connection for these claimed disabilities must be denied. E. A back disability Service treatment records reflect no complaints or findings relating to a back disorder or back problems. At the time of his examination for separation from service in January 1992, the Veteran denied any history of recurrent back pain. January 2011 private treatment records note that the Veteran denied back pain, muscle cramps, muscle weakness, or stiffness. The May 2012 letter from Dr. N.O., submitted by the Veteran, states that the Veteran has a history of back problems that might be related to the stress of using his back in service, including lifting and carrying heavy loads such as weapons and munitions. Dr. N.O. stated that the Veteran had continuous strong back pain that had been getting worse and causing functional impairment of use, with stiffness and episodes of muscle spasm. As a result, the Veteran had difficulty lifting heavy things, bending, squatting, crawling, climbing, and reaching was limited, and the Veteran did not tolerate prolonged walking or stair climbing. Dr. N.O. further stated that the stress on the Veteran’s back during service could promote degenerative problems in the longer term, cause loss of correct alignment and loss of curvature, and could present disc bulging and herniation with degenerative problems, which also brings problems of radiculopathy. Dr. N.O. stated, “Please evaluate him carefully because it is at least as likely as not that this back problem is service connected.” The Veteran was given a VA examination of his back in June 2013. Examination included range of motion testing, strength testing, and testing for signs of radiculopathy. No diagnosis was given, there was determined to be no functional impact of resulting from the Veteran’s back, and the examiner stated that there was no evidence of any back condition in the medical examination. However, the examiner also gave the opinion that the Veteran’s “low back pain condition is a disease with a clear and specific etiology and diagnosis,” and that “the low back pain condition is not caused by or a result of a specific exposure event experienced by the Veteran during service in Southwest Asia.” The examiner did not provide any explanation of the disparity in the examination report and opinion as to whether the Veteran had any clinically ascertainable back disorder manifested by low back pain. Given the above, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has a low back disorder manifested by pain, related to his duties in service. While no back symptoms were found on June 2013 VA examination, and no specific, objective low back pathology has been noted, the Veteran was found by Dr. N.O. to have low back pain resulting in functional impairment; the June 2013 VA examiner provided conflicting and contradictory opinions as to whether the Veteran had any such condition of the low back. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Also, while service treatment records and the post-service treatment record is negative for any back problems except for Dr. N.O.’s May 2012 statement, such statement is competent evidence reflecting the opinion that the Veteran’s back disorder, manifested by pain and functional impairment, was at least as likely as not related to his in-service duties; there is no competent evidence on the question of nexus to service contradicting this opinion. Accordingly, service connection must be granted for a low back disorder manifested by pain. F. A right knee disability, to include meniscal tear At the time of his examination for separation from service in January 1992, while the Veteran had a normal evaluation of his lower extremities, he reported, “My knee locked once and ever since hurts after PT and sometimes walking tricks on me.” On December 1992 VA joints examination, the Veteran reported a history of right knee injury in service and current right knee pain. Orthopedic examination was negative except for crepitus with movements, and X-ray showed joint spaces well-maintained and normal examination. A September 2010 private magnetic resonance imaging (MRI) provided to rule out meniscal tear reflects an impression of osteoarthritis with chondromalacic changes especially in the lateral tibiofemoral compartment, and there appeared to be status post lateral meniscectomy. On June 2013 VA examination, it noted that the Veteran reported suffering trauma to his right knee in 2002 and that, secondary to it, he suffered a meniscal tear. At that time, he complained of pain and limitation in movement. Thus, while on separation examination in January 1992 the Veteran reported some right knee symptoms, and while crepitus was noted on December 1992 VA examination, no chronic disability in service and continuing to the present was shown. In this regard, the Veteran’s December 1992 examination was essentially normal, with X-ray showing joint spaces well-maintained and normal examination; no arthritis was shown to manifest within a year of service. While the Veteran has been noted to have treatment for a meniscal injury and residuals thereof, as reflected on September 2010 MRI and June 2013 VA examination, the Veteran himself reported that such injury occurred in 2002, well after his period of service. There is no medical or other competent evidence suggesting any relationship between his current right knee disorders and symptoms and his period of service. Therefore, a preponderance of the evidence is against a finding that a right knee disability, to include meniscal tear, began during service or is related to service in any other way. Accordingly, service connection for such disability must be denied. G. Persian Gulf service Finally, the Board notes that service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology are not considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). In this case, the record reflects that the Veteran is a Persian Gulf Veteran. However, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are not applicable to any claimed disability in this case, as no qualifying chronic disability has been shown. While right knee pain and functional impairment has been noted, as discussed above, such disability has been attributed to a diagnosis of a 2002 meniscal injury by the medical evidence. Regarding the Veteran’s left knee, again, the record does not contain competent evidence of any left knee findings, treatment, or diagnoses, and there is no evidence or explanation of the nature of any left knee disability; there are no findings of pain even, or anything else that could be considered signs or symptoms that may be manifestations of any undiagnosed illness or medically unexplained chronic multisymptom illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Therefore, the Board finds that no indications of a qualifying chronic disability, under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 has been shown, and service connection for any disability under those provisions for Persian Gulf Veterans is not warranted. II. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). A. PTSD The Veteran’s PTSD is rated under Diagnostic Code (DC) 9411, 38 C.F.R. § 4.130. Under DC 9411, the following applies: A 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In this case, an initial rating for PTSD of 50 percent, but no greater, is warranted prior to November 12, 2015; and a rating of 70 percent, but no greater, is warranted beginning that date. On VA examination in June 2013, it was noted that the Veteran’s PTSD symptoms included memories of war, nightmares associated with combat experience, and hypervigilance. The examiner assessed that the Veteran’s PTSD resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. The examiner further opined that the Veteran’s PTSD resulted in little to mild impairment in social or occupational functioning. Mental status examination revealed adequate hygiene and dress, no abnormal movements, coherent thought process with no loose associations, and no delusions, hallucinations, or suicidal ideation. Mood was not depressed, dysphoric, anxious, or irritable. Affect was appropriate. Orientation, concentration, memory, judgment, abstraction, and insight were good. For VA rating purposes, the Veteran’s psychiatric symptoms were noted to be depressed mood, chronic sleep impairment, and disturbances of motivation and mood. June 2013 and July 2014 statements from the Veteran’s private psychiatrist, Dr. J.R.C., indicates that the Veteran had hypervigilance, irritability, marked anxiety, thoughts of death, and frequent nightmares. Such symptomatology and functional impairment is mostly contemplated by the criteria for a 30 percent rating under DC 9411, which contemplates symptoms of the nature and severity of depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), and chronic sleep impairment. However, disturbances of motivation and mood was noted as a symptom on VA examination, and the statements from Dr. J.R.C. indicate that the Veteran’s symptomology during this period included “marked” anxiety and thoughts of death. Given these additional symptoms, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s symptoms reasonably approximated those of the nature and severity of the next higher 50 percent rating under DC 9411. However, no higher rating than 50 percent for the Veteran’s psychiatric disability is warranted during the period. Again, the whole of the Veteran’s symptomology, as described above, is mostly contemplated by the criteria for a 30 percent rating—and at most, given the additional symptomatology noted above, a 50 percent rating. Moreover, in this regard, the June 2013 VA examiner determined that the commensurate functional impairment resulting from such symptoms was “little to mild,” with an assessment of occupational and social impairment most closely approximating the criteria for a lesser 10 percent rating under DC 9411; the evidence does not reflect occupation and social impairment of the level contemplated in the 70 percent rating criteria, of deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. See Vazquez-Claudio, 713 F.3d at 117-18. The Board notes that Dr. J.R.C. noted “thoughts of death” as a symptom of the Veteran’s; however, suicidal ideation—a symptom listed in the 70 percent rating criteria—was not noted by Dr. J.R.C. or elsewhere in the record during this period. Moreover, even if the symptom of suicidal ideation had been indicated, the Veteran’s symptoms as a whole during this period—along with their commensurate occupational and functional impairment—would still most closely approximate the criteria for a 50 percent rating under DC 9411, given the evidence discussed above. Beginning with an evaluation from Dr. J.R.C. dated November 12, 2015, the evidence shows worsened symptoms and impairment. On that evaluation, the Veteran was assessed as having occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, with symptoms of depressed mood, anxiety, suspiciousness, mild memory loss, difficulty or inability to establish and maintain effective relationships, difficulty adapting to stressful circumstances, impaired impulse control, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. Dr. J.R.C. commented that the Veteran had poor tolerance, irritability, frequent depressive crises, chronic insomnia, and aggressive relations at work and during his marriage. Dr. J.R.C. also commented that the Veteran isolated himself and had minimal emotional engagement. Dr. J.R.C. also provided a mental health evaluation dated in December 2017. At that time, the Veteran was noted to dress in a clean, simple fashion, with adequate hygiene and no apparent physical mannerisms. He also reported auditory hallucinations including his name being called and conversations about him and mumbling, and strong irritability. There was diminished attention, concentration, and learning, especially related to recent events. He was oriented and recognized his emotional state adequately. There was impairment of judgment, and he had difficulty controlling his irritability and agitation, causing him to react in an aggressive manner towards others. Resolving reasonable doubt in the Veteran’s favor, the available medical evidence reflects that, as of November 12, 2015, the Veteran was shown to have a level of functional impairment and symptomology approximating the nature and severity of that contemplated in the criteria for a 70 percent rating under DC 9411. However, the evidence has never reflected total occupational and social impairment, or that the Veteran’s PTSD symptoms most closely approximate the nature and severity of those contemplated in a 100 percent rating. The Board notes Dr. J.R.C.’s notation of intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene as a symptom in November 2015. However, it is not explained in that evaluation, or elsewhere in the record, what activities the Veteran has been unable to perform or how. Moreover, hygiene has consistently been noted to be good, including by Dr. J.R.C. on December 2017 evaluation. The Board also notes the Veteran’s reports of auditory hallucinations in December 2017. Such hallucinations are acknowledged or mentioned nowhere else in the record, and the Veteran has never been noted to have psychotic, delusional, or hallucinatory behavior on any objective evaluation, psychiatric or otherwise. Moreover, even considering these noted or reported symptoms, the Veteran’s overall symptomology, and resulting occupational and social impairment, has been shown to most closely approximate that contemplated in the criteria for a 70 percent rating under DC 9411 as of November 12, 2015. Accordingly, an initial rating in excess of 30 percent prior to November 12, 2015, is not warranted; and, resolving reasonable doubt in the Veteran’s favor, a rating of 70 percent, but no greater, is warranted as of November 12, 2015. B. Atrial fibrillation The Veteran’s atrial fibrillation is rated according to the criteria of DC 7010 for supraventricular arrhythmias. Under DC 7010, permanent atrial fibrillation (lone atrial fibrillation), or one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by echocardiogram (ECG) or Holter monitor, warrants a 10 percent rating; paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by ECG or Holter monitor, warrants a 30 percent rating. 38 C.F.R. § 4.104, DC 7010. Private treatment records indicate an assessment of cardiac arrhythmia, resolved. The Veteran received hospital treatment for a diagnosis of paroxysmal atrial fibrillation in May 2012. A July 2012 ECG revealed ejection fraction greater than 55%, left atrium mildly dilated, and trace mitral and tricuspid regurgitation. Left ventricular ejection fraction and wall motion were normal, right ventricular systolic function was normal, and there was no evidence of mitral valve prolapse or stenosis. On June 2013 VA examination, the Veteran reported two instances of hospital treatment for atrial fibrillation, in 2004 and 2012. It was noted that he took continuous medication of Toprol XL and Coumadin daily, and that he had intermittent paroxysmal atrial fibrillation, but had not had any episode of such in the last 12 months. On physical examination, heart rhythm was normal. Interview-based METs test revealed limitation at >7 to 10 METs, a level consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging (6 miles per hour). It was noted that a private electrocardiogram (EKG) brought by the Veteran, dated in April 2013, revealed normal sinus rhythm. In this case, a rating greater than 10 percent is not warranted for atrial fibrillation. The record reflects only one episode of documented paroxysmal atrial fibrillation or other supraventricular tachycardia during the appeals period, in 2012, and the Veteran has not asserted having any more. No further symptomology warranting any higher rating has been asserted by the Veteran or shown by the record. The Board notes the Veteran’s representative’s May 2018 brief, in which it asserts that the Veteran “has flare ups that present with a more sever[e] representation o[f] the atrial fibrillation than as represented by VA.” However, the Veteran’s representative has not described what such flare-ups are or pointed to any evidence of these in the record. Accordingly, a rating greater than 10 percent is not warranted for atrial fibrillation.  C. Left ankle injury residuals The Veteran’s left ankle injury residuals are rated under DC 5271, which provides ratings based on limitation of extension of the ankle. Moderate limitation of motion of the ankle is rated 10 percent; and marked limitation of motion of the ankle is rated 20 percent. Higher ratings are available under DC 5270 for ankylosis of the ankle. 38 C.F.R. § 4.71a. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. On June 2013 VA examination, the Veteran reported no flare-ups impacting ankle function. Left ankle plantar flexion was to 40 degrees, with painful motion beginning at that point. Extension was to 15 degrees, with pain beginning at that point. Range of motion was unchanged with repetition, with no other functional impairment of the ankle. Ankle strength was full and there was no instability. On December 2015 VA examination, the Veteran reported ankle problems, including at his job, which required standing and walking, as well as swelling and discomfort. He reported increased problems with walking on irregular surfaces and climbing stairs, as well as increased pain intensity associated with standing and walking, occasional use of crutches with flare-ups, and regular use of a brace. On range of motion testing, dorsiflexion was to 12 degrees, and plantar flexion was to 38 degrees. There was pain noted on examination with dorsiflexion, but not resulting in functional loss. There was no evidence of pain with weight bearing or crepitus, but there was tenderness to palpation anterior to the lateral malleolus. Ankle strength was full, and while instability was initially suspected, there was no laxity on testing. The examiner commented that the Veteran’s disability would not impact his ability to perform any type of occupational task such as standing, walking, lifting, sitting, etc. A rating in excess of 10 percent for left ankle injury residuals is not warranted. The Veteran’s ankle motion has been limited, at most, even considering painful motion, to dorsiflexion of 12 degrees and plantar flexion of 38 degrees. Even considering the Veteran’s reports of occasional flare-ups, the Board finds that his disability more closely approximates moderate, rather than marked, limitation of motion. The Board notes the Veteran’s reports of swelling and discomfort, increased problems with walking on irregular surfaces and climbing stairs, as well as increased pain intensity associated with standing and walking. However, it finds such functional impairment with regular use of the ankle to be reasonably contemplated in ankle disability of the severity to approximate moderate limitation of motion. Accordingly, a rating in excess of 10 percent for left ankle injury residuals must be denied. D. Left hand middle finger fracture residuals The Veteran’s left hand middle finger fracture residuals are rated under DC 5229, which provides ratings for limitation of motion of the index or long finger. Under DC 5229, limitation with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees, warrants a 10 percent rating; and with a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and extension is limited by no more than 30 degrees, warrants a noncompensable (0 percent) rating. 38 C.F.R. § 4.71a. On June 2013 VA examination, the Veteran complained of pain in his service-connected finger and limitation of movement during cold days. He did not report flare-ups. On examination, there was no limitation of motion or evidence of painful motion for any fingers, including with repetition, and grip strength was full. On December 2015 VA examination, the Veteran complained of hypersensitivity to palpation at distal third finger and discomfort of the distal finger when grasping an object or when pressing or pushing in which the middle finger is involved, and decreased dexterity when using his left (non-dominant) hand for repetitive activities. There was no loss of range of motion, including with repetitive motion, but pain with finger flexion. Hand grip strength was full. A compensable rating for left hand middle finger fracture residuals is not warranted. The Veteran’s middle finger has consistently been noted not to have any limitation of motion or strength. The Board notes the Veteran’s reported symptoms of hypersensitivity to palpation, discomfort with significant use of the middle finger, and decreased dexterity when using his left hand for repetitive activities, as well as his observed pain with finger flexion in December 2015. However, especially considering the lack of any limitation of motion or strength in the service-connected finger, the Board finds that the Veteran’s symptoms are reasonably contemplated by his noncompensable rating under DC 5229, which contemplates disability of the severity of limitation of finger motion of a gap of up to one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and extension limited by up to 30 degrees. Accordingly, a compensable rating for left hand middle finger fracture residuals must be denied. E. Tinnitus The maximum schedular rating available for tinnitus is 10 percent. 38 C.F.R. § 4.87, DC 6260; see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). There is therefore no legal basis on which to award a higher schedular rating than 10 percent for bilateral tinnitus. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board notes the Veteran’s representative’s contentions in a May 2018 brief that the Veteran “has flare ups that present with a more sever[e] representation o[f] the tinnitus than as represented by VA albeit warranting a rating in excess of 10 percent, even if this must be accomplished under extra scheduler consideration.” However, neither the Veteran nor his representative has explained or submitted evidence showing, and the record does not otherwise reflect, how his tinnitus might present such an exceptional disability picture that the available schedular evaluation is inadequate, so as to warrant referral by the Board for extraschedular consideration under 38 C.F.R. § 3.321(b). See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the evidence is against a finding that the Veteran’s tinnitus warrants compensation beyond the maximum 10 percent schedular rating for bilateral tinnitus under DC 6260. Accordingly, a rating in excess of 10 percent for bilateral tinnitus must be denied. III. TDIU Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified, including consideration of education and occupational experience. Neither age nor intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Here, the Veteran’s service-connected disabilities are as follows: PTSD, rated 30 percent prior to November 12, 2015, and 70 percent thereafter; left ankle injury residuals, rated 10 percent; tinnitus, rated 10 percent; atrial fibrillation, rated 10 percent; and left hand middle finger fracture residuals, rated noncompensable. The Veteran’s combined rating for compensation is 50 percent prior to November 12, 2015, and 80 percent thereafter. On June 17, 2013, VA released a Fast Letter, the stated purpose of which was “to revise and clarify VA procedures relating to claims for total disability ratings based on individual unemployability (TDIU).” See VA Fast Letter 13-13 (June 17, 2013). The changes noted included the following: “VA will require the claimant complete and submit VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to substantiate the claim of TDIU”; “VA will administratively deny TDIU claims if VA requests, but the Veteran does not submit, required forms or evidence.” Under the heading “Requirement for VA Forms 21-8940 and 21-4192,” the following was stated: If a claim for TDIU has been expressly or reasonably raised by the evidence of record, but a current VA Form 21-8940 is not on file, provide it to the Veteran for completion. Before VA will consider a claim for IU ● the Veteran must complete a VA Form 21-8940, and ● the Veteran with multiple service-connected disabilities must specify one or more service-connected disabilities that he or she believes cause the unemployability. It was instructed that if the Veteran fails to complete and return the VA Form 21-8940, the claim would be denied. It was also noted that if the Veteran returned the VA Form 21-8940, the rating agency was to “send VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to the former employer(s) listed on the form for which the Veteran worked during his last year of employment.” The following was also stated: “Note: Request VA Form(s) 21-4192 for the Veteran’s last year of employment even if the Veteran has not worked for five years or more.” The June 17, 2013, VA Fast Letter changes were incorporated into the VA Adjudication Procedures Manual M21-1MR. Pursuant to that VA Manual, a substantially complete VA Form 21-8940 is required to establish entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant’s disabilities and employment and educational histories. The form concludes with a series of sworn certification statements, and in endorsing it, a Veteran both attests to his/her employment status, and signals understanding of the TDIU benefit’s incompatibility with substantially gainful work. A properly signed and executed VA Form 21-8940 enables VA to gather the information necessary to determine the Veteran’s entitlement to TDIU and recover TDIU compensation that is later discovered to have been awarded on fraudulent terms. M21-1, Part IV, Subpart ii, Chapter 2, Section F.2.b. A VA Form 21-8940 must be signed by the Veteran and not a third party source such as a power of attorney. Id. According to the Manual, VA is to deny entitlement to IU only if the facts demonstrate that the Veteran is not precluded from securing or following substantially gainful employment by reason of service-connected disability; is gainfully employed; or has failed to cooperate with development, such as failing to return a completed VA Form 21-8940 when requested. M21-1, IV.ii.2.F.4.k. In this case, the Veteran submitted a VA Veteran’s Supplemental Claim for Compensation indicating that he was filing a claim for a TDIU. In a December 2015 development letter in response his TDIU claim and other claims, the agency of original jurisdiction (AOJ) stated: “You may be entitled to compensation at the 100 percent rate if you are unable to secure and follow a substantially gainful occupation because of your service connected disabilities. If you believe you qualify, complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability.” Enclosed with the letter was a VA Form 21-8940. The Veteran’s TDIU claim was denied in a January 2016 rating decision on the basis that the Veteran “failed to return VA Form 21-8940 and the evidence of record, considered, among other factors, does not reveal the complete information and evidence concerning your unemployability.” The Veteran’s TDIU claim was again denied on the same basis in a December 2016 statement of the case (SOC). The Veteran responded to both the rating decision and SOC, but did not return a completed VA Form 21-8940; he has otherwise not provided the information regarding his current and past employment and employer information, and other such pertinent information, that would be provided in a completed form. Despite VA’s repeated requests for the Veteran to complete and submit a VA Form 21-8940, and explanation that a completed form is necessary to the development and substantiation of his claim for a TDIU, the Veteran has still not done so, without explanation. As the Veteran has not completed and returned a VA Form 21-8940, VA’s efforts have been frustrated in adequately developing his TDIU claim and obtaining necessary information to make a proper determination as to whether he is unemployable for purposes of a TDIU. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA’s duty to assist a claimant is not always a “one-way street,” and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence). Therefore, the Board is unable to make a finding that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. Accordingly, a TDIU must be denied. IV. SMC Special monthly compensation provided by 38 U.S.C. §1114(l) is payable for being so helpless as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(b). The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in 38 U.S.C. § 3.352(a). 38 C.F.R. § 3.350(b)(3). Under 38 U.S.C. § 3.352(a), the following is accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 U.S.C. § 3.352(a). It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which a veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a veteran is so helpless, as to be in need of regular aid and attendance are based on the actual requirement of personal assistance from others. Special monthly compensation provided by 38 U.S.C. § 1114(s) is payable where a veteran has a single service-connected disability rated as total and is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(2). This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. Id. For purposes of satisfying the requirements of 38 U.S.C. § 1114(s), a total disability rating for individual unemployability due to a service-connected disability (TDIU) may be considered a total rating. See Bradley v. Peake, 22 Vet. App. 280, 291-93 (2008). However, multiple disabilities, even if able to be combined and considered as a single disability for purposes of 38 C.F.R. § 4.16(a), do not meet the criteria for “a service-connected disability rated as total” for SMC under 38 U.S.C. § 1114(s). Id. at 290-91. In this case, the evidence does not show—and the Veteran has not in any way explained—how he meets any of the criteria listed in 38 U.S.C. § 3.352(a), or otherwise how he might be so helpless as to be in need of regular aid and attendance as a result of his service-connected disabilities. Also, the Veteran does not have any single service-connected disability rated as total, and he has not demonstrated—or offered any argument supporting a finding that—he is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises. Thus, a preponderance of the evidence is against a finding that the Veteran is so helpless as to be in need of regular aid and attendance, or is permanently housebound, as a result of his service-connected disabilities. Accordingly, SMC based on the need for regular aid and attendance or by reason of being permanently housebound is not warranted. V. Automobile/Adaptive Equipment Financial assistance may be provided to an “eligible person” in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only. 38 U.S.C. § 3902(a)(b). Eligibility for assistance to purchase a vehicle and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis; or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. 38 U.S.C. § 3901; 38 C.F.R. § 3.808. The term “loss of use of a hand or foot” is defined as existing when “no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance.” 38 C.F.R. § 3.350(a)(2). In this case, eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, must be denied. None of the above criteria for financial assistance under 38 U.S.C. § 3902 have been shown to be met. While the Veteran has a left ankle and left middle finger disability, the evidence has not shown loss of use of a hand or foot. Neither the Veteran nor his representative have actually argued that the specific criteria for assistance under 38 U.S.C. § 3902—including loss of use of a foot, as defined in 38 C.F.R. § 3.350(a)(2)—have been met, nor provided any specific argument as to why he might be eligible for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only. As the Veteran does not meet the criteria set forth in 38 U.S.C. § 3901 and 38 C.F.R. § 3.808 for eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, under 38 U.S.C. § 3902, his claim for such must be denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Andrew Mack, Counsel