Citation Nr: 18157509 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-49 726 DATE: December 13, 2018 ORDER Entitlement to an earlier effective date than May 27, 2014 for the grant of service connection for tinnitus is denied. Entitlement to an earlier effective date than May 27, 2014 for the grant of service connection for bilateral hearing loss is denied. Entitlement to service connection for hypothyroidism (thyroid disorder) is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for migraine headaches, claimed as secondary to service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for erectile dysfunction, claimed as secondary to service-connected PTSD is denied. Entitlement to service connection for sleep apnea, claimed as secondary to service-connected PTSD is granted. Entitlement to a rating more than 10 percent for tinnitus is denied. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a compensable rating for bronchitis is remanded. FINDINGS OF FACT 1. On May 27, 2014, the Veteran, in pertinent part, submitted a claim of entitlement to service connection for tinnitus. A copy of the claim was also added to his electronic claims file on June 2, 2014. 2. Service connection for tinnitus and bilateral hearing loss was eventually granted by a September 2014 rating decision, effective June 2, 2014, with an evaluation of 10 percent and 0 percent, respectively. The Veteran was informed of this decision, and he filed an appeal. 3. A September 2016 rating decision granted entitlement to an earlier effective date of May 27, 2014, for the Veteran’s service-connected tinnitus and bilateral hearing loss due to clear and unmistakable error. A statement of the case with respect to the earlier effective dates and the other issues on appeal was also provided in September 2016. 4. The record does not reflect the Veteran had an unadjudicated increased evaluation or service connection claim for tinnitus and/or bilateral hearing loss prior to May 27, 2014. 5. The preponderance of the evidence does not show that the Veteran’s thyroid disorder is related to service and/or manifested to a compensable degree within one year following service. 6. The preponderance of the evidence does not show that the Veteran’s hypertension is related to service and/or manifested to a compensable degree within one year following service. 7. The preponderance of the evidence of record does not show that the Veteran’s migraine headaches are related to service and/or are due to or aggravated by service-connected PTSD. 8. The preponderance of the evidence of record does not show that the Veteran’s erectile dysfunction is related to service and/or is due to or aggravated by service-connected PTSD. 9. With the resolution of reasonable doubt in favor of the Veteran, the preponderance of the evidence of record shows that the Veteran’s sleep apnea is related to service and/or is due to or aggravated by service-connected PTSD. 10. The Veteran’s tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code 6260. Factors rendering the application of the regular schedular provisions impractical have not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date than May 27, 2014 for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). 2. The criteria for entitlement to an earlier effective date than May 27, 2014 for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 3. The criteria for entitlement to service connection for hypothyroidism (thyroid disorder) have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 4. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 5. The criteria for entitlement to service connection for migraine headaches, claimed as secondary to service-connected posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 6. The criteria for entitlement to service connection for erectile dysfunction, claimed as secondary to service-connected PTSD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. 7. With resolution of reasonable doubt in the Veteran’s favor, entitlement to service connection for sleep apnea, claimed as secondary to service-connected PTSD have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. 8. The criteria for entitlement to a rating more than 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1969 to April 1972, including service in Vietnam. The Board observes that a September 2016 rating decision increased the Veteran’s service-connected PTSD to 100 percent disabling, effective July 9, 2013. While the Veteran is in receipt of a total rating, the Veteran may be entitled to additional potential benefits. This appeal ensues. 1. Entitlement to an earlier effective date than May 27, 2014 for the grant of service connection for tinnitus and/or bilateral hearing loss. The Veteran contends that he is entitled to an effective date earlier than May 27, 2014 for the grant of service connection for tinnitus and/or bilateral hearing loss. The Board notes that the Veteran initially appealed the original effective date of June 2, 2014 that was erroneously assigned in a September 2014 rating decision. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. Here, the Board observes that service connection for tinnitus and bilateral hearing loss was first assigned an effective date of June 2, 2014. It appears that the Regional Office (RO) assigned that date based on a later copy of the Veteran’s claim. Again, the Board notes that the Veteran filed his original claim on May 27, 2014, which is several days prior to the date the RO initially considered. Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). In the present case, there is simply nothing in the record to suggest an effective date prior to May 27, 2014 is warranted. While the RO originally assigned an effective date of June 2, 2014, it was later amended to an effective date of May 27, 2014 because an earlier copy of the Veteran’s claim was received on that date. Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on these regulations, the effective date has been appropriately assigned as the date of claim for which it was successfully filed. While sympathetic to the Veteran’s belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to May 27, 2014 for the grant of service connection for tinnitus and bilateral hearing loss. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to May 27, 2014 for the award of service connection for said disabilities. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2017). Certain diseases are deemed associated with herbicide exposure under current VA law. 38 C.F.R. § 3.309(e). In addition, for Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. These include hypertension and/or migraine headaches and or endocrinopathies. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown in-service, subsequent manifestations of the same chronic disease are generally service-connected. If a chronic disease is noted in service but chronicity in-service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability that is 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. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107. VA shall consider all information and lay and medical evidence of record in a case. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. 2. Entitlement to service connection for hypothyroidism (thyroid disorder). The Veteran seeks entitlement to service connection for a thyroid disorder. The Veteran’s service records are silent as to any complaints of or treatment for a thyroid disorder. The Board acknowledges that the Veteran has received VA treatment for several medical conditions, including hypothyroidism. The Veteran received a VA examination in August 2014. The examiner diagnosed the Veteran with hypothyroidism, dated August 2008. The examiner determined that the Veteran’s thyroid disorder is less likely than not attributable to service. The examiner explained that the Veteran’s condition was not diagnosed until 2008. The examiner further explained that the medical evidence of record does not support a diagnosis of hypothyroidism in-service, not does it show a link between the condition and his service. Notably, the examiner remarked that the Veteran stated that he did not consider his hypothyroidism to be related to service and was unsure why his claim as to this issue was being processed. Here, the Board finds the opinion of the VA examiner to be highly probative because it was based upon a review of the Veteran’s entire electronic claims file, as well as other pertinent medical records, and, in most cases, full examinations, to include both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Presumptive service connection for hypothyroidism is also not warranted. The probative evidence of record here does not show that symptoms related to hypothyroidism manifested to a compensable degree during the year following service. In addition, the record does not support a continuity of symptomatology theory of entitlement, as private treatment records show a diagnosis of hypothyroidism in 2008, which is over 35 years after the Veteran’s separation from service. Furthermore, the Veteran does not assert hypothyroidism symptomatology on a continual basis following active service. As such, service connection on a presumptive basis is precluded. In sum, the most probative evidence of record demonstrates that the Veteran’s hypothyroidism was not incurred in or aggravated by service. In making this decision the Board notes that the Veteran is competent to report hypothyroidism symptoms and the circumstances surrounding such. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the Veteran’s thyroid disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). For the above reasons, the Veteran’s claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. 3. Entitlement to service connection for hypertension. The Veteran seeks entitlement to service connection for hypertension. The Veteran’s service treatment records are silent as to any complaints or findings of hypertension. The Board acknowledges that the Veteran has received VA treatment for several medical conditions, including hypertension. The Veteran underwent a VA examination in December 2010. The examiner diagnosed the Veteran with hypertension, dated September 2007. Objective findings showed blood pressure readings of 117/79, 130/94, and 84/65. His hypertension was noted to be stable and requires the usage of continuous medications. The examiner determined that the Veteran’s hypertension is less likely than not attributable to service. The examiner explained that the Veteran’s condition was not diagnosed until 2007. The examiner further explained that the medical evidence of record does not support a diagnosis of hypertension in-service, not does it show a link between the condition and his service. Similarly, the examiner remarked that the Veteran stated that he did not consider his hypertension to be related to service and was unsure why his claim as to this issue was being processed. It was also noted that the Veteran is morbidly obese and in poor compliance with his medical care. Here, the Board finds no basis to establish presumptive service connection for the Veteran’s hypertension because it did not manifest to a compensable degree within one year of discharge from service. 38 C.F.R. § 3.309. Instead, the Veteran’s hypertension was not diagnosed until at least 2007. The Board determines that the preponderance of the evidence shows that the Veteran’s hypertension was not incurred in or aggravated by service. The Board finds the reasoning of the VA examiner highly probative as the examiner indicated a detailed review of the evidence, provided a fully supported rationale consistent with the evidence, and considered the Veteran’s medical history. Importantly, the VA examiner found no evidence to support a nexus to service and mentioned that the Veteran himself did not believe that his hypertension was attributable to his military service. To summarize, the most probative evidence of record demonstrates that the Veteran’s hypertension was not incurred in or aggravated by service. In making this decision the Board again notes that the Veteran is competent to report hypertension symptoms and the circumstances surrounding such. However, he is not competent to provide an opinion as to a complex medical question such as the etiology of his hypertension. For the above reasons, the Veteran’s claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. 4. Entitlement to service connection for migraine headaches, claimed as secondary to service-connected posttraumatic stress disorder (PTSD). The Veteran seeks entitlement to service connection for migraine headaches, claimed as secondary to service-connected PTSD. The Veteran’s service records are silent for any complaints of or treatment for migraine headaches. The Board again observes that the Veteran has received ongoing VA treatment for multiple conditions, including migraine headaches. It appears that his complaints of headaches were first noted in approximately February 2006. The Veteran received a VA examination in February 2014. The Veteran reported to experience bad nightmares that were associated with his headaches that occurred 6 times per week. He stated that his headaches stopped after drinking water. The examiner diagnosed the Veteran with migraine headaches. The examiner determined that the Veteran’s headaches are less likely than not attributable to service. The examiner reasoned that there is insufficient evidence to indicate that the Veteran complained about his headaches during his military service. The Veteran underwent another VA examination in September 2014. The Veteran again stated that his headaches coincide with his nightmares. He was again diagnosed with migraine headaches. The examiner found that the Veteran’s headaches are less likely than not proximately due to or the result of the Veteran’s service-connected PTSD. The examiner explained that there is insufficient medical evidence to support a nexus between the Veteran's claimed headache condition with his service-connected PTSD because PTSD is not medically considered an etiology of headaches. An addendum opinion was obtained in September 2016. The examiner opined that the Veteran’s migraine headaches are less likely than not incurred in, caused by, or aggravated by military service. After a review of the medical evidence, the examiner stated that the Veteran’s “migraine headache condition is stable and reveals no abnormalities other than would normally be expected from the condition. No aggravation can be demonstrated that has arisen from the Veteran’s service-connected PTSD.” Upon review of the record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for migraine headaches. Regarding direct service connection, the Veteran’s service treatment reports do not show that he received any relevant treatment. In other words, a chronic condition is not shown during service. See 38 C.F.R. § 3.303(a). As for the post-service medical evidence, it shows only scattered complaints of headaches that onset in 2006, at which time he received treatment for complaints of headaches. Thus, headaches are shown many years after service, and this period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Regarding the Veteran’s claim of secondary service connection, the Board finds that the VA opinions of record weigh against the claim. As provided above, the September 2014 and September 2016 VA examiners clearly explained that there is insufficient medical evidence to support a nexus between the Veteran’s claimed headache condition with his service-connected PTSD. Additionally, the September 2016 VA examiner confirmed that no aggravation can be demonstrated that would have arisen from his service-connected PTSD. The Board has considered the Veteran’s lay statements regarding the onset of his headaches. Lay testimony is competent, however, to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the Board finds the Veteran competent and credible to provide evidence as to his symptoms, the reasoned expert medical opinions of the VA examiners are more probative as to the etiology of his headaches, as they are based on a review of the record and consideration of the relevant medical literature. Therefore, the Board finds that the service treatment reports and the post-service medical evidence, outweigh the Veteran’s contentions to the effect that he has the claimed conditions that are related to his service, or to his service-connected PTSD. For the above reasons, the Veteran’s claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. 5. Entitlement to service connection for erectile dysfunction, claimed as secondary to service-connected PTSD. The Veteran seeks entitlement to service connection for erectile dysfunction, claimed as secondary to service-connected PTSD. The Veteran’s service records are silent as to any complaints of or treatment for erectile dysfunction. The Veteran has received ongoing medical treatment for several medical conditions, including erectile dysfunction, which was first noted in March 2009. The Veteran was afforded a VA examination in February 2014. The Veteran stated that his erectile dysfunction first began approximately 7 years ago and stated that he is no longer interested in sexual activity. The examiner diagnosed the Veteran with erectile dysfunction, but opined that the erectile dysfunction is less likely than not attributable to service. The examiner reasoned that there is insufficient evidence in the Veteran’s medical file to suggest that his erectile dysfunction was incurred during his military service. An addendum opinion was received in September 2016. The examiner stated that the Veteran’s erectile dysfunction is less likely than not aggravated beyond its normal progression by his service-connected PTSD. The examiner reported that the Veteran’s erectile dysfunction is stable and the medical evidence reveals no abnormalities other than what would normally be expected from the condition and that no aggravation can be demonstrated. Upon review of the record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for erectile dysfunction. Regarding direct service connection, the Veteran’s service treatment reports do not show that he received any relevant treatment. As for the post-service medical evidence, the post-service medical evidence shows complaints of erectile dysfunction no earlier than 2007. Thus, the erectile dysfunction onset many years after service, and this period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. Regarding the Veteran’s claim of secondary service connection, the Board finds that the VA opinions of record weigh against the claim. To wit, the September 2016 VA examiner confirmed that there is no evidence of erectile dysfunction prior to 2007 and it is not aggravated by his service-connected PTSD. Additionally, although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, concerning secondary causation and aggravation, falls outside the realm of common knowledge of a lay person. In other words, the central question in this case, whether erectile dysfunction was caused or aggravated by service or service-connected disability, is a complex medical question, which is the subject of advanced medical knowledge concerning complex biological processes, anatomical relationships, and physiological functioning within the human body. Thus, it is not a question within the competence of a lay person. Because the Veteran’s own opinion as to etiology is not competent evidence on this question, the probative value of his opinion is substantially outweighed by the highly probative, unfavorable evidence discussed above. For the above reasons, the Veteran’s claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. 6. Entitlement to service connection for sleep apnea, claimed as secondary to service-connected PTSD. The Veteran seeks entitlement to service connection for sleep apnea, claimed as secondary to service-connected PTSD. The Veteran’s service records are negative for treatment for sleep apnea. However, he did report some non-specific sleep problems in March 1970 and was seen for respiratory complaints related to bronchitis on several occasions as well. The Veteran’s February 2014 VA examination did not yield a diagnosis of sleep apnea. The Veteran’s VA treatment records indicate a diagnosis of sleep apnea in November 2015. VA obtained a medical opinion in September 2016. The examiner determined that the Veteran’s sleep apnea is less likely than not incurred in or caused by the sleep and/or breathing related complaints during service. The examiner explained that the sleep apnea did not onset until some 40 years after service. The examiner also stated that the sleep apnea is less likely than not proximately due to or the result of PTSD. The examiner indicated that the medical literature does not mention PTSD as a cause or risk factor for sleep apnea, which makes sense considering that PTSD has no effect on the muscles of the airway resulting in sleep apnea. The examiner also noted that there have been several articles referencing the presence of sleep apnea in individuals with PTSD, but there is still no medical evidence showing that PTSD actually causes sleep apnea. In addition, he noted that the Veteran has other nonservice-connected risk factors that would predispose him to developing the sleep apnea condition. The examiner also gave an opinion that the sleep apnea is less likely than not aggravated beyond natural progression by the service connected PTSD, as the evidence demonstrates that the Veteran’s sleep apnea is stable, with no abnormalities other than what would normally be expected from this condition to demonstrate aggravation. Importantly, the Veteran submitted a March 2016 private treatment report from Dr. Skaggs. After a thorough review of the evidence of record, Dr. Skaggs, stated that the Veteran’s sleep apnea did not begin until many years after service. Instead, Dr. Skaggs found that it is more likely than not that the service-connected PTSD aided in the development of his sleep apnea and permanently aggravates the sleep apnea as well. Dr. Skaggs cited to medical evidence in support of his opinion. When evaluating medical opinions, it is the province of the Board to weigh the evidence and decide where to give credit and where to withhold the same, and in so doing, to also accept certain medical opinions over others. See Evans v. West, 12 Vet. App. 22, 30 (1999). The Board cannot make its own independent medical determinations, and there must be plausible reasons for favoring one opinion over another. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail and whether there was review of the Veteran’s claims file. Prejean v. West, 13 Vet. App. 444 (2000). An evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert’s personal examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusions reached. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When confronted with conflicting medical opinions, the Board must weigh each and favor one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must also determine which of the competing medical opinions is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). Here, the Board places substantial probative value on the March 2016 private report from Dr. Skaggs, as he indicated a complete review of the Veteran’s electronic claims file and synthesized the Veteran’s medical history. While the September 2016 VA opinion contained a negative nexus to service, the rationale was less probative and the VA examiner did not address or reconcile the March 2016 report from Dr. Skaggs. Thus, resolving the benefit of the doubt in favor of the Veteran, the Board finds the evidence is at least in relative equipoise as to whether his sleep apnea is related to service and/or supportive of a finding of secondary service connection. As such, service connection for sleep apnea is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 7. Entitlement to a rating more than 10 percent for tinnitus The Veteran contends that he is entitled to a higher disability rating for his service-connected tinnitus. The Veteran’s tinnitus is evaluated as 10 percent disabling under Diagnostic Code 6260. 38 C.F.R. § 4.87. Pursuant to Diagnostic Code 6260, a 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Moreover, there is no contention nor evidentiary showing that there is such impairment due to tinnitus as to render application of the regular schedular provisions impractical. As such, the claim is denied. See 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to a compensable rating for bilateral hearing loss is remanded. Review of the record reveals that a remand is required in order to provide a new VA audiological examination. To that end, the Board notes that the Veteran’s most recent and pertinent VA audiological examination took place in September 2014. Audiological testing revealed the following results: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left 30 30 25 45 50 Right 25 30 30 45 50 Additionally, Maryland CNC Speech Discrimination testing yielded scores of 96 percent for the right ear and 100 percent for the left ear. This examination ultimately resulted in a continuation of his noncompensable rating for bilateral hearing loss. The Veteran’s medical treatment records suggest that his hearing loss may have worsened since his previous VA examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). As such, a contemporaneous VA audiological examination is warranted.   2. Entitlement to a compensable rating for bronchitis is remanded. Similarly, the Veteran’s most recent and pertinent VA respiratory examination was conducted in April 2014. Results of this examination formed the basis for his noncompensable rating. The Veteran’s medical treatment records indicate that his service-connected bronchitis may have worsened since his latest VA respiratory examination. Given this evidence, and the significant period of time that has elapsed since the April 2014 VA examination, a new VA respiratory examination is needed. Finally, the evidence of record suggests that the Veteran may have outstanding VA or private treatment records. It would therefore be prudent for VA to obtain all pertinent medical records. The matters are REMANDED for the following action: 1. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records and associate them with the Veteran’s electronic claims file. If the Agency of Original Jurisdiction (AOJ) cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran’s electronic claims file. 2. Then, after pertinent records are obtained, but whether or not records are obtained, schedule the Veteran for a new VA audiological examination to assess the current level and severity of his bilateral hearing loss disability. The audiologist is to be provided access to the Veteran’s electronic claims file and must specify in the report that these records have been reviewed. The evaluation should be in accordance with the criteria delineated in 38 C.F.R. § 4.85 and should include testing of pure tone criteria at 1000, 2000, 3000, and 4000 Hz and speech recognition scores using the Maryland CNC Test. The VA audiologist must fully describe the functional effects caused by the bilateral hearing loss disability in the final report. 3. Also, schedule the Veteran for an appropriate examination to ascertain the current level and severity of his service-connected bronchitis using the most recent Disability Benefits Questionnaire (DBQ) form. The electronic claims file should be made available to the examiner for review. Any indicated diagnostic tests and studies should be performed and the results should be reported in detail. 4. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand.   If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel