Citation Nr: 18161072 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-44 520 DATE: December 28, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for asthma, to include as due to asbestos exposure, is denied. Entitlement to a compensable rating for allergic rhinitis is denied. REMANDED Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and bipolar disorder, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for occipital neuralgia is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a rating in excess of 10 percent prior to September 1, 2015, and in excess of 20 percent thereafter (excluding those periods for which temporary total ratings are assigned), for a lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). FINDINGS OF FACT 1. The Veteran has tinnitus that is likely attributable to noise exposure during military service. 2. The Veteran’s asthma is not attributable to any injury or event during active duty service, to include claimed exposure to asbestos. 3. The Veteran’s allergic rhinitis has not been productive of nasal polyps, greater than 50 percent obstruction of nasal passages on both sides, or complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for asthma, to include as due to asbestos exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for a compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corps from August 1993 to March 2001, with additional National Guard service. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and from April and October 2015 rating decisions. Although the Veteran perfected a timely appeal on two separate service connection claims addressing two specific psychiatric diagnoses (PTSD and bipolar disorder), the claims have been recharacterized as a single claim for an acquired psychiatric disorder, to include PTSD and bipolar disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In a May 2018 rating decision, the RO denied a claim for entitlement to a TDIU. To date, this denial has not been appealed, however, a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, a TDIU rating is part of the claim for a higher rating on appeal. Service Connection 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; 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus began in service. Noise exposure is consistent with his military occupational specialty (MOS) duties as an assault amphibious vehicle crewman. A March 2015 VA examiner provided a negative nexus opinion on the basis that there were no complaints or diagnosis of tinnitus in the service treatment records. The Veteran is considered competent to provide evidence regarding symptoms he has experienced, such as ringing in the ears for many years. His statements as to noise exposure and suffering from tinnitus since his active service are consistent with the circumstances of his service and are credible. Therefore, considering the totality of the evidence, the Board finds that the evidence is at least equipoise on the question of a nexus between service and the current tinnitus. Resolving reasonable doubt in the Veteran’s favor, the claim of service connection for tinnitus is granted. 2. Entitlement to service connection for asthma, to include as due to asbestos exposure The Veteran is seeking service connection for asthma as result of exposure to asbestos exposure during active duty service. In August 2015, the RO sent the Veteran a letter requesting details about his alleged asbestos exposure. A response was not received from the Veteran. The Veteran’s service treatment records are absent for any complaints or treatment for asthma or related respiratory problems. Post service, a February 2016 VA treatment record shows a diagnosis of asthma. Service connection for asthma is not warranted. The Veteran reports asbestos exposure during his period of service, however, the record contains no evidence supporting this contention. The Veteran has not provided sufficient information to allow further development in this regard. Moreover, the record does not contain any indication of a nexus between the Veteran’s current asthma and his active duty service. The Veteran was not diagnosed with asthma until many years after his period of service and aside from the Veteran’s own claim, there is no evidence suggesting a link between his current asthma and his active duty service. In light of the above, the Board finds the service connection for asthma, to include as secondary to asbestos exposure, is not warranted. 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 3. Entitlement to a compensable rating for allergic rhinitis Under Diagnostic Code 6522, allergic rhinitis warrants a 10 percent rating when there are no nasal polyps but there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A maximum rating of 30 percent is warranted when polyps are present. 38 C.F.R. 4.97, Diagnostic Code 6522. During a March 2015 VA examination, the Veteran reported that his allergic rhinitis was worse and that he has tried different types of medication but none seem to work. Upon examination, the examiner affirmatively found neither greater than 50 percent nasal obstruction of the nasal passage on both sides due to rhinitis, nor complete obstruction of either side, nor any nasal polyps. As noted above, the Veteran’s allergic rhinitis is not productive of any nasal polyps or greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side to warrant a compensable rating in this case. Accordingly, a compensable rating for allergic rhinitis is not warranted REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder is remanded. The Veteran maintains that he has a psychiatric disorder due to the abuse of a commanding officer and others including his drill instructor (see April 2015 Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault). The Veteran has not been provided a VA Form 21-0781a, which is specific to claims for PTSD based on personal assault. Accordingly, on remand, he must provide the requisite form. See M21-1, IV.ii.1.D.5.e. VA outpatient treatment records show diagnoses of bipolar disorder r/o PTSD, depression and anxiety disorder. On remand, a VA examination is needed to determine the etiology of all present psychiatric disorders. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea is secondary to PTSD. Because a decision on the issue of service connection for PTSD could significantly impact a decision on the issue of service connection for sleep apnea, the issues are inextricably intertwined. A remand of the claim for service connection for sleep apnea is required. 3. Entitlement to service connection for occipital neuralgia is remanded. A December 2014 VA traumatic brain injury consult reveals a diagnosis of “headaches – suspect right occipital neuralgia.” The Veteran reported the headaches first began after breaking his jaw while playing football during active duty service in 1995. The Veteran is currently service-connected for status post jaw fracture. A VA examination is warranted to determine the etiology of the Veteran’s headaches and occipital neuralgia. 4. Entitlement to service connection for GERD is remanded. The Veteran reports the onset of GERD during his active duty service. Specifically, he reported that he was diagnosed with GERD in 2001 during his discharge examination, but a review of this report does not confirm his statement. However, the Veteran also states that he was told that prior to the discharge examination, he was told that his symptoms were just indigestion. Following a VA esophageal conditions examination in March 2015, the examiner determined that it was less likely than not that the Veteran’s GERD had its onset in service. The examiner’s rationale was that the Veteran reported that he was diagnosed with GERD during active duty service but the records did not substantiate the Veteran’s contentions. Significantly, the examiner’s opinion did not take into consideration the Veteran’s statements regarding the of onset of symptoms such as indigestion during active duty service which the Veteran is competent to report. In light of the above, further VA opinion is warranted. 5. Entitlement to a rating in excess of 10 percent for left knee disability and entitlement to a rating in excess of 10 percent for right knee disability is remanded. The Veteran was last afforded a VA examination of his knees in March 2015. In a May 2015 statement, the Veteran reported that he was experiencing instability of the knees. Also, since the March 2015 examination, the U.S. Court of Appeals for Veteran’s Claims (the Court) has issued decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. The March 2015 examination does not comply with the recent Court decisions. Accordingly, further VA examination of the knees is warranted. 6. Entitlement to a rating in excess of 10 percent prior to September 1, 2015, and in excess of 20 percent thereafter (excluding those periods for which temporary total ratings are assigned), for a lumbar spine disability is remanded. A Statement of the Case (SOC) in this matter was issued in August 2016. Thereafter, an October 2017 thoracolumbar spine conditions examination report and other medical evidence pertinent to the lumbar spine were associated with the Veteran’s claims file. This additional evidence was not submitted by the Veteran, and he has not waived AOJ consideration of such evidence. Accordingly, the claim must be returned to the AOJ for its initial consideration of the October 2017 VA spine examination report and other pertinent medical evidence and issuance of a Supplemental Statement of the Case (SSOC). 7. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is intertwined with the other issues currently on appeal which are being remanded. Thus, those claims remaining on appeal must be fully decided prior to adjudication of the Veteran’s claim for a TDIU. The matters are REMANDED for the following action: 1. Send the Veteran a notice letter and VA Form 21-0781a to be completed in connection with his claim for service connection for PTSD based on an alleged in-service personal assault. 2. Take all appropriate steps to attempt to verify the Veteran’s claimed stressors. All actions to verify the alleged stressors should be fully documented in the claims file. If the information provided by the Veteran lacks sufficient specificity to be verified, the AOJ should make a formal finding to that effect. 3. After the above records development is completed, the Veteran should be afforded a VA examination to determine the nature and possible relationship to service of any and all psychiatric disorders that may be present. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a) The examiner must identify all current psychiatric disorders, to include whether the Veteran has PTSD. (b) For each disorder identified other than PTSD, the examiner must state whether it is at least as likely as not (a 50 percent or better probability) the disorder is causally or etiologically related to the Veteran’s military service. (c) With respect to PTSD, the examiner must be provided with a summary of any verified in-service stressors and must be instructed that only these events and any stressors related to fear of hostile military or terrorist activity may be considered in determining whether exposure to an in-service stressor has resulted in PTSD. If there is a verified stressor or if there is a stressor related to fear of hostile military or terrorist activity consistent with the Veteran’s service, the examiner must determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is appropriate, the examiner must then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. A rationale for all opinions expressed should be provided 4. Based on the medical opinion provided regarding an acquired psychiatric disorder, determine whether further development is warranted regarding the claim for sleep apnea, which the Veteran is claiming is secondary to an acquired psychiatric disorder. 5. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and possible relationship to service of any occipital neuralgia. The entire claims folder must be made available to and reviewed by the examiner. An explanation for all opinions must be provided. The examiner should address the following: Whether it is at least as likely as not that occipital neuralgia/headaches is due to or otherwise etiologically related to the Veteran’s service, to include a November 1995 injury to the jaw. 6. Obtain an addendum opinion regarding the etiology of the Veteran’s GERD from a VA examiner. The entire claims folder must be made available to and reviewed by the examiner. If an examination is necessary, it shall be provided. An explanation for all opinions must be provided. The examiner should address the following: Whether it is at least as likely as not that the Veteran’s GERD is due to or otherwise etiologically related to the Veteran’s service, to include his reports of indigestion during service. 7. The Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine the current severity of his service-connected left and right knee disabilities. The Veteran’s electronic claims file should be made available to and reviewed by the examiner. All symptoms and manifestations of the right and left knee disabilities must be noted in the report, including ranges of motion. The examiner is requested to do joint testing for pain and to test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for each knee. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must indicate whether pain or weakness significantly limits functional ability during flare-ups or when the right knee and/or left knee are used repeatedly over a period of time. The examiner must also determine whether the joints exhibit weakened movement, excess fatigability or incoordination; if feasible, these determinations must be expressed in terms of additional range-of-motion loss due to any weakened movement, excess fatigability or incoordination. If it is not feasible to express any functional impairment caused by pain, weakened movement, excess fatigability or incoordination, found in terms of additional range-of motion loss, the examiner must so state. The examination report must include a complete rationale for all opinions expressed. 8. Readjudicate the claim for an increased rating for the lumbar spine disability considering all additional evidence received since the issuance of the August 2016 SOC, to specifically include the report of an October 2017 thoracolumbar spine conditions examination. (Continued on next page) 9. After completing the above, the claims, including entitlement to a TDIU, should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Appellant and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Henriquez, Counsel