Citation Nr: 18160175 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 17-03 997 DATE: December 27, 2018 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Entitlement to an initial rating of 50 percent, but no higher, for insomnia is granted. REMANDED Entitlement to service connection for bilateral wrist pain is remanded. Entitlement to service connection for bilateral ear pain is remanded. Entitlement to an initial rating in excess of 10 percent for a low back disability is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have bilateral hearing loss disability for VA purposes. 2. The Veteran’s tinnitus has been assigned a 10 percent evaluation throughout the appeal period, which is the maximum rating authorized for tinnitus under Diagnostic Code 6260, for either a unilateral or bilateral condition. 3. For the entire period on appeal, the Veteran’s insomnia more closely approximated occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.87, Diagnostic Code 6260 (2018); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 3. The criteria for an initial rating of 50 percent, but no higher, for insomnia have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9433 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 2011 to October 2011, and again from January 2014 to January 2015, to include service in Southwest Asia. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). During the course of the appeal, the Veteran has asserted that he is no longer able to work due to his service-connected disabilities. The issue of a TDIU has been raised by the record. Service Connection - Bilateral Hearing Loss Disability The Veteran asserts that he has bilateral hearing loss disability as a result of acoustic trauma sustained in active service. Specifically, the Veteran had claimed hazardous noise exposure in the form of loud noise without proper ear protection during active service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). With respect to claims for hearing loss, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). A review of the Veteran’s service records shows that his military occupational specialty (MOS) during active duty was as a Chemical Operations Specialist. The Board finds that the Veteran’s reported noise exposure is consistent with the facts and circumstances of his service. Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) are silent for complaints of, treatment for, or a diagnosis of bilateral hearing loss disability for VA purposes while the Veteran was in active service. A November 2014 STR indicates the Veteran complained of trouble with his hearing. However, the results of audiometric testing during service demonstrated that the Veteran had normal hearing acuity. In May 2016, the Veteran was afforded a VA audiological evaluation. At that time, the Veteran reported the noise exposure described above. The examiner found that audiometric testing did not demonstrate a bilateral hearing loss disability for VA compensation purposes. 38 C.F.R. § 3.385. A review of the post-service evidence of record does not show that the Veteran has been diagnosed with bilateral hearing loss disability for VA purposes. The Board notes that while the Veteran is competent to report symptoms of decreased hearing acuity, there is a difference between hearing loss and a hearing loss disability. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The term “disability” as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Accordingly, a diagnosis of a hearing loss disability for VA compensation purposes requires medical expertise, clinical testing, and knowledge that are outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Since the establishment of a hearing loss disability requires a specific form of testing, the Veteran’s lay statements are not competent or probative of whether he has a hearing loss disability as distinguish from hearing loss. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, a review of the record, to include the May 2016 VA audiological report, fails to show that the Veteran has bilateral hearing loss disability for VA compensation purposes. Moreover, the Veteran has not presented or identified audiometric testing results that meet the requirements of 38 C.F.R. § 3.385 for a hearing loss disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Disability Evaluation Claims Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the Veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1151 (2012); 38 C.F.R. Part 4 (2017). Disability evaluations are determined by assessing the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). If there is a question as to which evaluation should be applied to the Veteran’s disability, 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 (2017). Further, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2017). The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the Veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Tinnitus The Veteran’s tinnitus is currently assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260 (recurrent tinnitus). The resolution of this claim is wholly dependent on the application of the law. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002). Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for “recurrent” tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2) (2018). In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the Court held that the pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the Federal Circuit and stayed the adjudication of tinnitus rating cases affected by the Smith decision. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA’s interpretation of its own regulations, 38 C.F.R. § 4.25 and Diagnostic Code 6260, which limits a veteran to a single 10 percent maximum rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. Subsequently, the stay of adjudication of tinnitus rating cases was lifted. Thus, the Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus of 10 percent under 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, the Veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is also no basis to “stage” the Veteran’s 10 percent rating for his tinnitus, as his symptoms have remained consistent throughout the entire appeal period, and he has been in receipt of the maximum 10 percent during the entire appeal period. 2. Insomnia The Veteran asserts that he should have a higher rating for his insomnia as his symptoms are worse than those contemplated by the currently assigned rating. In a May 2016 decision, the RO granted service connection for insomnia and assigned an initial 30 percent rating effective from January 11, 2016. The Veteran’s insomnia is currently rated at 30 percent pursuant to Diagnostic Code 9433, 38 C.F.R. § 4.130. A 50 percent disability rating is warranted when the Veteran experiences occupational and social impairment with reduced reliability and productivity, due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more 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 percent disability rating is warranted when the Veteran experiences 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent disability 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130 (2017). When rating psychiatric disorders, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA implemented DSM-5, effective August 4, 2014, and determined that the DSM-5 applies to claims certified to the Board on and after August 4, 2014. See Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093-94 (Aug. 4, 2014). As the Veteran’s increased rating claim was originally certified to the Board in May 2016, the DSM-IV is not for application in this case. As relevant to this case, in Golden v. Shulkin, 29 Vet. App. 221, 226 (2018), the Court of Appeals for Veterans Claims (Court) noted that although GAF scores were designed to help quantify and summarize the severity of symptoms associated with mental disorders, the DSM-5 eliminated GAF scores because of their “conceptual lack of clarity” and “questionable psychometrics in routine practice.” Id. Given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Court held that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. Id. The Court further held, “It makes little sense to impose a heightened reasons-or-bases requirement by obligating the Board to discuss how the American Psychiatric Association’s rejection of GAF scores should affect the weight of such evidence. Instead, the Court provides far simpler guidance: the Board should not use such evidence at all when assigning a psychiatric rating in cases where the DSM-5 applies.” Id. Thus, the Board will afford no probative value to the GAF scores mentioned in the record, and does not consider them for purposes of assigning a psychiatric rating in this appeal. Here, the post-service evidence of record reflects that the Veteran endorsed psychiatric symptomatology that included exhaustion; agitation; flattened mood; anger; mood swings; social isolation; avoidance of people; memory loss; panic attacks; interpersonal relationship difficulty; difficulty with coworkers; difficulty with communication; difficulty with thinking; difficulty with work; chronic sleep impairment; fatigue; and anxiety. In May 2016, the Veteran was afforded a VA psychological examination. At that time, the Veteran endorsed the following symptoms: anxiety; and chronic sleep impairment. Upon mental status examination, the Veteran was noted to be alert and oriented to person, place, and time. His thinking was logical, and goal-oriented. His speech was fluent, and at a normal rate and volume. He was noted to have auditory comprehension within normal limits. The Veteran presented as casually dressed, neatly groomed, pleasant, cooperative, and had an anxious mood. His affect was appropriate to thought content. He was not shown to have hallucinations or delusions. He denied homicidal or suicidal ideation. The examiner diagnosed insomnia. Of record are various lay statements submitted by the Veteran. In those statements, he indicated that he experienced significant stress during deployment. He stated he experienced fatigue, constant stress, an inability to sleep, and an inability to interact with people in a normal manner. He stated that his inability to sleep has affected his ability to socialize with peers in school, coworkers at work, and his family. He reported mood swings and difficulty with memory. He stated his forgetfulness caused anxiety and frustration. The Veteran reported that his memory loss was so significant and that he would attempt to write things down in an effort to remember, but would forget what he was going to write down. He stated that his fatigue resulted in an ability to seek new relationships and amotivation. He also reported difficulty with school work and a worsening of grades. He also stated that socializing caused panic. He stated that during an episode of panic, he would experience incased heart rate and labored breathing. He also stated that he was incapable of working due to his symptoms because he was not able to “use [his] brain to really think about complex situation[s] and depend[ed] on others greatly.” For the entire appeal period, the Veteran has been shown to have symptoms of anxiety, interpersonal relationship issues; panic attacks; chronic sleep disturbances; and difficulty at work and school due to his insomnia symptomatology. Specifically, the Veteran’s psychiatric symptomatology has been shown to have caused memory loss, worsening of grades at school, and social anxiety. In this regard, the Veteran reported difficulty interacting with classmates, coworkers, and family. Further, the Veteran’s symptoms have been relatively consistent throughout the entire period on appeal. Moreover, the Veteran reported his grades at school were generally “A’s”, but due to his insomnia symptomatology his grades were now generally “C’s”. Therefore, the Board finds that entitlement to a 50 percent rating is warranted for the entire period on appeal. 38 C.F.R. § 4.130, Diagnostic Code 9433. The Board acknowledges that the results of the VA examination, the symptoms described in the VA examination report, and the evidence of record do not indicate that the Veteran has experienced all of the symptoms associated with a 50 percent rating for insomnia for the entire period on appeal. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that there is occupational and social impairment with reduced reliability and productivity sufficient to warrant a 50 percent rating for the entire period on appeal even though all the specific symptoms listed for that rating are not manifested. Consideration has been given to assigning a higher rating for the appeal period. However, there is no indication from the record that the Veteran’s insomnia results in social and occupational impairment with deficiencies in most areas. The Veteran is shown to be employed and actively engaged in school, albeit with difficulty. The Veteran has not exhibited hallucinations, delusions, or significant cognitive impairment. The Veteran did not exhibit delusions. He did not present with impairment in speech, thought content, or orientation. There is no gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, or persistent danger of the Veteran hurting himself or others. Accordingly, there is no indication from the record that the Veteran’s symptoms were so severe as to cause occupational and social impairment with deficiencies in most areas. Therefore, the Board finds that a rating in excess of 50 percent for insomnia is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9433. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Resolving reasonable doubt in the Veteran’s favor, the Veteran’s disability picture, to include the severity, frequency, and duration of his symptoms, and the resulting impairment of social and occupational functioning, is more consistent with a 50 percent disability evaluation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial rating of 50 percent, and no higher, for insomnia is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9433. REASONS FOR REMAND 1. Service Connection- Bilateral wrist and ear pain The Veteran asserts that he has bilateral wrist pain and bilateral ear pain as a result of his active service. Specifically, the Veteran has claimed that due to physical training, carrying and shooting weapons, and other daily tasks required during his active service, he has had hand and wrist pain on a daily basis during service and since. Moreover, the Veteran has claimed that he had bilateral ear pain that began during his deployment, and has continued since his separation from active service. Service treatment records (STRs) are silent for complaints of, treatment for, or diagnoses of bilateral wrist pain and bilateral ear pain while the Veteran was in active service. However, the Veteran has reported that he first experienced bilateral wrist pain and bilateral ear pain while in active service and that his symptoms have continued since that time. A review of the post-service evidence of record shows that the Veteran has complained of continuing bilateral wrist pain and bilateral ear pain, and has received continuing treatment since his separation from active service. Specifically, of record is a January 2016 VA treatment record indicting the Veteran complained of chronic bilateral wrist pain and bilateral ear pain. However, to date, he has not been afforded a VA examination. Therefore, the Board finds that examinations are warranted in this case to determine whether there are any current underlying diagnoses pertaining to the bilateral wrists and bilateral ears. See McClendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Further, the Board notes the holding in the recent Federal Court decision of Saunders v. Wilkie, 886 F.3d 1356 (2018), which requires the RO to schedule the Veteran for a VA examination to determine whether the Veteran’s bilateral wrist and ear pain causes functional impairment such that it may qualify as a disability in the event an underlying diagnosis is not provided. 2. Disability Evaluation – Low Back Disability The Board notes that in a recent decision the United States Court of Appeals for Veterans Claims (Court) found that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In other words, if there is not a discussion of those measurements in a VA examination report, the examination is inadequate, unless the examiner determines that those range of motion testing listed could not be conducted. Correia v. McDonald, 28 Vet. App. 158 (2016). A review of the record shows that the Veteran was most recently afforded a VA examination for his low back in May 2016. A review of those examination reports fails to show findings that are consistent with the holding in Correia. Therefore, the Veteran should be afforded a new VA examination to determine the current level of severity of all impairment resulting from his service-connected low back disability. The Court also issued a decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) which is applicable to this case. In Sharp, the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Id. at 32. The Court further explained that, in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination was “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). In the May 2016 VA examination, the Veteran denied suffering from flare-ups. Nevertheless, on remand, if the Veteran does report flare-ups, then the examination must comply with the additional requirements in Sharp as noted above. 3. TDIU Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claim remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final disposition of the claim currently on appeal. Additionally, current treatment records should be identified and obtained before a decision is made in this case. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination/s to determine the nature and etiology of any identified residuals of a bilateral wrist disorder and a bilateral ear disorder, to include pain. A complete rationale for all opinions offered must be provided. The examiner should specifically state whether any identified disorder/s are at least as likely as not (50 percent or greater probability) related to the Veteran’s military service. The examiners must discuss the rationale of the opinions, whether favorable or unfavorable, based on the findings on examinations and information obtained from review of the record. 3. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected low back disability. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. In assessing the severity of the low back disability, the examiner should test for pain on both active and passive motion, in weight-bearing and non-weight bearing. 4. Confirm that the VA examination report and any medical opinion provided comport with this remand, and undertake any other development found to be warranted. 5. Then, readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. T. BERRY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel