Citation Nr: 18159506 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-55 073 DATE: December 20, 2018 ORDER Service connection for bilateral tinnitus is granted. A compensable rating for service-connected hypertension is denied. A compensable rating for service-connected migraine headaches prior to February 9, 2017 is denied. An increased rating of 30 percent for service-connected migraine headaches from February 9, 2017 is granted. REMANDED Entitlement to service connection for a traumatic brain injury is remanded. Entitlement to an increased rating for service-connected status post lumbar compression fractures is remanded.   FINDINGS OF FACT 1. The Veteran has experienced tinnitus intermittently since service. 2. The Veteran’s hypertension has not been productive of diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. 3. Prior to February 9, 2017, the Veteran’s headaches were characteristic of with less frequent attacks. 4. From February 9, 2017, the Veteran’s headaches have been characteristic of prostrating attacks occurring on an average once a month over last several months. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.104, Diagnostic Code 7101. 3. The criteria for a compensable rating for headaches prior to February 9, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.124a, Diagnostic Code 8100. 4. The criteria for an increased rating of 30 percent for headaches are met from February 9, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2007 to September 2012. These matters come to the Board of Veterans’ Appeals (Board) on appeal from May 2015 and August 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado and Little Rock, Arkansas. Jurisdiction was subsequently transferred to the RO in Detroit Michigan. The Board notes that the Veteran submitted a timely Form 9 dated November 2016 in which he stated he only wished to appeal the issue of entitlement to service for Tinnitus. The Veteran did not appeal the issues of entitlement to service connection for bilateral hearing loss and entitlement to an earlier effective date for a total disability rating based on individual unemployability (TDIU). Accordingly, the Board finds that these issues are not before the Board. 1. Entitlement to service connection for bilateral tinnitus The Veteran seeks service connection for bilateral tinnitus. Specifically, the Veteran contends that he developed bilateral tinnitus as a result of acoustic trauma related to his military occupational specialty (MOS) as Military Police. Alternately, the Veteran contends that he has tinnitus as a result of an IED blast Following review of the evidence of record, the Board finds that service connection for bilateral tinnitus is warranted. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted through the application of statutory presumptions for chronic conditions. See 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a) (2017). “Other organic diseases of the nervous system,” which may include tinnitus, are classified as “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Presumptive service connection for “chronic diseases” must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant’s separation from service. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1336-38. The application of these presumptions operate to satisfy the “in-service incurrence or aggravation” element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). Here, military personnel records document that the Veteran had a MOS of Military Police. The Board notes that guidance suggests that this MOS is associated with a moderate probability of hazardous noise exposure and thus military noise exposure is conceded. A current diagnosis of tinnitus is also confirmed by the evidence of record. See May 2015 VA Examination. In addition, 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). The presence of tinnitus is readily identifiable by its features and, thus, is capable of lay observation by the Veteran. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The evidence of record also includes lay statements from the Veteran stating that his tinnitus began during active military service and has continued thereafter. The Board acknowledges that the evidence of record includes evidence that weighs against the claim. Specifically, in May 2015 a VA examiner opined that the Veteran’s tinnitus was less likely as not caused by or a result of military noise exposure. The examiner reasoned in part that that the Veteran denied ringing in the ears on his 2009 post deployment assessment and at his 2011 hearing conservation appointment. However, the Board affords the Veteran’s own statements significant probative value. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is competent to report the symptoms of his tinnitus, and the Board finds that he is credible. See Layno, 6 Vet. App. at 469. The Board notes that the Veteran has consistently stated since 2014 that he has experienced bilateral tinnitus since service. The Veteran reported tinnitus since military service during a September 2014 VA audiological consult. In his November 2016 VA Form 9, the Veteran also reported tinnitus since military service. The Board also notes that the Veteran’s contentions regarding military noise exposure are consistent with his MOS. As stated above, the Veteran’s MOS has a moderate probability of military noise exposure. In light of the positive and negative evidence of record, to specifically include the Veteran’s competent and credible report of tinnitus that had its onset during service and has continued since service, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s bilateral tinnitus is related to service. Accordingly, the claim is granted. 2. Entitlement to a compensable rating for service-connected hypertension The Veteran contends that the symptoms associated with his service-connected hypertension are more severe than is reflected in the currently assigned noncompensable rating. The Veteran’s hypertension is rated as noncompensable under 38 C.F.R. § 4.101, Diagnostic Code 7101. Diagnostic Code 7101 provides for a 10 percent evaluation when diastolic pressure is predominantly 100 or more, or when systolic pressure is predominantly 160 or more, or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent evaluation is provided if diastolic pressure is predominantly 110 or more, or if systolic pressure is predominantly 200 or more. A 40 percent evaluation is provided if diastolic pressure is predominantly 120 or more. A 60 percent evaluation is provided if diastolic pressure is predominantly 130 or more. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Recently, in McCarroll v. McDonald, the United States Court of Appeals for Veterans Claims interpreted the language of Diagnostic Code 7101. 28 Vet. App. 267 (2016). There, the Court succinctly interpreted Diagnostic Code 7101 as follows: The criteria for compensable evaluations under DC 7101 thus contemplate two factual alternatives. First, a veteran whose blood pressure is currently controlled by medication-i.e., whose blood pressure does not otherwise meet the criteria for a compensable evaluation-but who has a history of diastolic pressure predominantly 100 or more is entitled to receive the minimum compensable evaluation of 10%. Second, a veteran whose blood pressure is currently elevated to varying degrees is entitled to evaluations ranging from 10% to 60%. Read together, these two scenarios clearly contemplate the effects of medication: either a veteran’s blood pressure is controlled by medication, warranting a 10% evaluation if there is a history of elevated systolic pressure, or it is not, in which case the actual blood pressure level determines the disability rating. Id. at 272 (citations omitted). Here, the question for the Board is whether the Veteran’s diastolic pressure was predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. The evidence shows that it did not meet these levels. In this regard, an April 2015 VA examination report documented blood pressure readings of 130/91, 132/91, and 130/86. The average blood pressure reading was noted as 130/89. The April 2015 VA examination report indicated that the Veteran’s treatment plan did not include taking continuous medication for hypertension, or isolated systolic hypertension. The examiner stated that the Veteran was diagnosed with hypertension in service and treated with medication for a period of time, but he was not currently taking medication for hypertension. A February 2017 VA examination documented blood pressure readings of 138/90, 130/90, and 132/86. The average blood pressure reading was 136/88. The February 2017 VA examination report indicated that the Veteran’s treatment plan did not include taking continuous medication for hypertension or isolated systolic hypertension. The February 2017 VA examination report also indicated that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. Similarly, VA treatment records blood pressure readings of 122/88 in September 2014, 112/78 in December 2014, 130/91 in February 2015, 159/84 in March 2015, 142/98 in December 2016, and 125/84 and 130/93 in September 2017. In sum, the evidence of record cannot support a finding that: (1) the Veteran’s diastolic pressure was predominantly 100 or more; (2) the Veteran’s systolic pressure was predominantly 160 or more; or (3) or that, while being controlled with continuous medication, the Veteran had a history of diastolic pressure predominantly 100 or more. The Board may not award an initial compensable evaluation as the medical evidence of record does not show that the severity of the Veteran’s condition met the minimum for a compensable evaluation under the binding and applicable legal criteria. The Board has considered the applicability of the benefit of the doubt doctrine; but, because the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b). 3. Entitlement to a compensable rating for service-connected migraine headaches The Veteran contends that the symptoms associated with his service-connected headaches are more severe than is reflected in the currently assigned noncompensable rating. Specifically, the Veteran contends that his migraine headaches require treatment with medication and result in pain and sensitivity to light. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. Id. Currently, the Veteran is in receipt of a noncompensable disability rating for headaches under Diagnostic Code 8100. Under Diagnostic Code 8100, headaches with less frequent attacks are rated noncompensable, headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling, headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated as 30 percent disabling, and headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). Although the rating criteria do not define “prostrating,” according to Dorland’s Illustrated Medical dictionary, 32nd Edition (2012), p. 1531, “prostration” is defined as “extreme exhaustion or powerlessness.” Here, the evidence of record includes an April 2015 VA examination report in which the examiner documented that the Veteran experienced characteristic prostrating attacks of migraine/non-migraine headache pain. The examiner indicated that the frequency, on average, of prostrating attacks over the last several months was with less frequent attacks. In a February 2017 VA examination report the examiner documented that the Veteran experienced characteristic prostrating attacks of migraine/non-migraine headache pain. The examiner indicated that the frequency, on average, of prostrating attacks over the last several months was once every month. The Board finds that since February 9, 2017, the date of the aforementioned VA examination, the Veteran’s symptoms have been analogous to characteristic prostrating attacks occurring on an average once a month over last several months-the criteria associated with a 30 percent rating under Diagnostic Code 8100. Therefore, an increased rating of 30 percent for headaches from February 9, 2017, is warranted. On the other hand, prior to February 9, 2017, it is not factually ascertainable that the Veteran’s symptoms warranted a compensable disability rating because they were not manifested as prostrating attacks averaging one in 2 months over the last several months. The Board acknowledges that the Veteran stated that he has migraine headaches which resulted in pain and sensitivity to light; and require medication. However, the overall evidence of record, including the VA examiner opinions, does not demonstrate that the Veteran meets the criteria for a compensable rating. Based upon the evidence in this case, the exact onset of the Veteran’s current 30 percent disability level cannot be determined with any certainty. The earliest that that it can be factually ascertained that he met the criteria for a percent rating is February 9, 2017, the date he was examined by VA. Accordingly, a compensable disability rating is not warranted prior to February 9, 2017. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS FOR REMAND 1. Entitlement to service connection for a traumatic brain injury is remanded. The Veteran seeks service connection for a traumatic brain injury. Specifically, the Veteran contends that he has a traumatic brain injury as a result of an IED blast. Alternately, the Veteran contends that he has a traumatic brain injury as a result of an incident in which he tripped and hit his right frontal/temporal region of his head on the steps of an MRAP and an incident in which a 50-caliber machine gun was fired right near his head during testing. In this regard, the evidence of record includes a February 2017 VA examination report in which the examiner indicated that the Veteran did not have a current diagnosis of a traumatic brain injury. The examiner opined that it was less likely than not that the Veteran suffered from a mild traumatic brain injury. The examiner reasoned that the three incidents that the Veteran detailed in his medical history did not fulfill the criteria of a mild traumatic brain injury; the Veteran denied loss of awareness, amnesia, and focal neurological signs or symptoms at the time of the incidents; and his memory and neurobehavioral problems are related to his mood disorder. The examiner further reasoned that the mood disorder is not due to frontal lobe damage of his brain from trauma; the persistent headaches that the Veteran experiences are not due to a mild traumatic brain injury; and there is no history of intracranial injury to the brain with blood, or breaching the skull that could cause a chronic headache disorder. However, the Board finds the February 2017 VA examination inadequate upon which to decide the Veteran’s service connection claim. The Board notes that the Veteran’s VA treatment records indicate that the Veteran had a history of a mild traumatic brain injury/diagnosis of a mild traumatic brain injury during the period on appeal. See March 2015 Battle Creek VAMC Records. However, the February 2017 VA examiner did not discuss the Veteran’s history of mild traumatic brain injury/diagnosis when rendering her opinion. Therefore, an addendum opinion addressing this evidence and clarifying whether the Veteran has had a diagnosis of a traumatic brain injury during the period on appeal should be obtained on remand. 2. Entitlement to an increased rating for service-connected status post lumbar compression fractures is remanded. The Veteran contends that his service-connected status post lumbar compression fractures warrants a disability rating higher than the noncompensable rating currently assigned under Diagnostic Code 5237. Specifically, the Veteran contends that he has flare-ups and moderate to severe radiculopathy. In this regard, the evidence of record includes a February 2017 VA examination report. At the February 2017 VA examination, the Veteran reported that he experiences flare-ups of the thoracolumbar spine. The Veteran reported that symptoms related to flare-ups of the thoracolumbar spine included increased pain that prompts him to change position. The February 2017 examiner indicated that she was unable to say without mere speculation whether the pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups, and did not estimate the effect of the Veteran’s flare-ups in terms of range of motion. The Court has recently reiterated that it is imperative that a VA examiner estimate the additional degree of limitation of motion caused by flare-ups and not decline to do so based on the rationale that such an estimate would require resort to speculation. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, a new VA examination is necessary to comply with the holding in Sharp. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Return the file to the February 2017 VA examiner for an addendum opinion. If that examiner is unavailable, the opinion should be provided by another examiner. If an examination is deemed necessary to answer the question presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is asked to provide an addendum opinion addressing any positive traumatic brain injury screenings and the Veteran’s history of mild traumatic brain injury noted in his VA treatment records. If the examiner finds that the Veteran had a traumatic brain injury at any point during the period on appeal, the examiner is asked to address whether there are any residuals. 3. Schedule the Veteran for an examination of the current severity of his status post lumbar compression fractures disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and after repeated use over time, and the degree of functional loss during flare-ups and after repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups and after repeated use over time, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel