Citation Nr: 1807865	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  17-34 746	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to a schedular rating higher than 10 percent for tinnitus. 

2.  Entitlement to an extraschedular rating higher than 10 percent for tinnitus.

3.  Entitlement to service connection for vertigo, secondary to hearing loss and tinnitus.

4.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression.

5.  Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities.

6.  Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities.

7.  Entitlement to service connection for degenerative arthritis of the bilateral knees.

8.  Entitlement to service connection for degenerative arthritis of the bilateral feet.

9.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel


INTRODUCTION

The Veteran had active military service from April 1960 to April 1964.

This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  In May 2013, the RO denied an increased rating higher than 10 percent for tinnitus, and denied service connection for vertigo, PTSD, and depression, as well as a TDIU.  The RO denied service connection for peripheral neuropathy of the bilateral upper and lower extremities and service connection for degenerative arthritis of the bilateral feet and knees in June 2014.  

The service connection claim for PTSD and depression has been combined as one issue on appeal, characterized as an acquired psychiatric disorder, to include PTSD and depression, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (a claim is not necessarily limited in scope to a single or particular diagnosis, and should be construed based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim). 

After the case was certified to the Board, the Veteran submitted additional evidence that had not been considered by the RO.  A remand, pursuant to 38 C.F.R. § 20.1304 is not necessary, however, as the evidence is relevant to the service connection claim for depression, which is granted, below.

The Veteran's attorney noted on a June 2017 VA-Form 9 that they were also appealing the effective date for the grant of service connection for tinnitus.  The RO has not addressed this matter yet.  However, it is worth noting that the effective date for the grant of service connection for tinnitus was not appealed after the RO granted service connection for tinnitus in a January 2007 rating decision.  Thus, the Veteran cannot now bring a free-standing claim for an earlier effective date for tinnitus unless submitting a motion for finding clear and unmistakable error in the January 2007 rating decision.  See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (a freestanding claim seeking to revise an effective date established in a prior final determination is legally invalid).  Although the issue of an earlier effective date for the grant of tinnitus has been raised by the record in the June 2017 statement, it has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues of service connection for vertigo and degenerative arthritis of the knees, and the claim for a TDIU and an extraschedular rating for tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  Throughout the appeal period, the Veteran's bilateral tinnitus has been assigned a 10 percent rating, the maximum schedular rating authorized under Diagnostic Code 6260.

2.  The preponderance of the evidence shows that the Veteran does not have a diagnosis of PTSD.

3.  The evidence of record is at least in equipoise as to whether the Veteran's currently diagnosed depression is due to or the result of his service-connected hearing loss and tinnitus disabilities.

4.  The preponderance of the evidence shows that the Veteran did not have service in Vietnam; and the preponderance of the evidence shows that his peripheral neuropathy of the bilateral upper and lower extremities was not incurred in service and did not manifest within one year of separation from service.

5.  The preponderance of the evidence shows that any diagnosed arthritis of the bilateral feet was not incurred in service and did not manifest within one year of separation from service. 


CONCLUSIONS OF LAW

1.  There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for bilateral tinnitus.  38 U.S.C. §1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017).

2.  The criteria for service connection for PTSD are not met. 38 U.S.C. § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 4.125 (2017).

3.  Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for depression have been met. 38 U.S.C. § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2017).

4.  The criteria for service connection for peripheral neuropathy of the bilateral upper extremities are not met. 38 U.S.C. § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017).

5.  The criteria for service connection for peripheral neuropathy of the bilateral lower extremities are not met. 38 U.S.C. § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017).

6.  The criteria for service connection for arthritis of the bilateral feet are not met. 38 U.S.C. § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C. § 5103 and 5103A (2012) have been met.  By correspondence dated in May 2012 and March 2013, VA notified the Veteran of the information and evidence needed to substantiate the claim.  The Veteran has not asserted any prejudice regarding the notice he received in this matter.    

VA has also satisfied the duty to assist.  The claims folder contains service treatment records, private treatment records, and VA treatment records.  

The Veteran underwent a VA examination in May 2017 for his claimed PTSD.  The examination includes objective findings necessary for rating purposes.  Additional examination is not needed.  The RO did not afford the Veteran a VA examination for peripheral neuropathy of the bilateral upper and lower extremities or the arthritis of the bilateral feet.  In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c).  The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event.  As discussed in more detail below, the record does not suggest that the Veteran's peripheral neuropathy of the bilateral upper and lower extremities or arthritis of the bilateral feet might have been incurred in service.  Therefore, the Board finds that the evidence of record does not trigger the necessity of an examination in order to decide the claim on the merits.  See 38 C.F.R. § 3.159(c).

In regard to the claim for an evaluation in excess of 10 percent for tinnitus, the Board finds that the duties to notify and assist are not applicable because the law is dispositive of the issue.  See Sabonis v. Brown, 6 Vet. App. 426 (1994); Mason v. Principi, 16 Vet. App. 129 (2002); see also, Manning v. Principi, 16 Vet. App. 534, 542 (2002) (Veterans Claims Assistance Act (VCAA) can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on the fact); Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  Further, VA has no duty to assist the Veteran in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid him in substantiating his claim.  See 38 U.S.C. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001).

In the circumstances of this case, additional efforts to assist or notify the Veteran would serve no useful purpose.  Soyini v. Derwinski, 1 Vet. App. 540 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  

VA has satisfied the duty to inform and assist the Veteran, and the Board finds that any errors were not harmful to the essential fairness of the proceeding.  Therefore, the Veteran will not be prejudiced as a result of the Board adjudicating the claim.

The Veteran's service connection claim for depression has been considered with respect to VA's duty to notify and assist.  Given the favorable outcome noted below, no conceivable prejudice to the Veteran could result from this adjudication.  See Bernard v. Brown, 4 Vet. App. 384, 393 (1993).

II.  Increased Rating for Tinnitus

Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.  

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 

The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107(a).  In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  Id.  

The Veteran is seeking an increased rating for bilateral tinnitus.  The RO denied the Veteran's request because a rating of 10 percent is the maximum schedular allowance under Diagnostic Code 6260 and there is no provision for assignment of a separate 10 percent evaluation for tinnitus of each ear.

In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that 38 C.F.R. § 4.25 (b) and 38 C.F.R. § 4.87, Diagnostic Code 6260 limit a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral.

The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus of 10 percent.  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 (1994).

III.  Service Connection

Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if preexisting such service, was aggravated during service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

Specific to claims for PTSD, service connection generally requires medical evidence diagnosing the condition in accordance with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5), a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors, and credible supporting evidence that the claimed in-service stressors actually occurred.  See 38 C.F.R. §§ 3.304(f), 4.125(a).  

Under 38 C.F.R. § 3.304(f)(3), if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  

"Fear of hostile military or terrorist activity" is defined as being where "a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror."  See 38 C.F.R. § 3.304(f)(3).

VA's regulations regarding rating psychiatric disorders were amended to replace references to DSM-IV to DSM-5 and update the nomenclature used to refer to certain psychiatric conditions.  See 79 Fed. Reg. 45093 (August 4, 2014).  The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014.  VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ.  See 80 Fed. Reg. 53, 14308 (March 19, 2015).  

As the RO certified the Veteran's appeal to the Board in July 2017, this claim is governed by DSM-5. 

Certain chronic disabilities, including organic diseases of the nervous system and arthritis, may be presumed to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

In addition if a veteran was exposed to an herbicide agent during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, certain diseases, including early onset peripheral neuropathy shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e).  

Effective September 6, 2013, VA amended its regulations regarding presumptive service connection for peripheral neuropathy associated with herbicide exposure. The amendment removed the requirement that an acute or subacute peripheral neuropathy appear within weeks or months after exposure and removed the requirement that the condition resolve within two years of the date of onset in order for the herbicide presumption to apply.  To effectuate this change, VA replaced the terms "acute and subacute" and "transient" peripheral neuropathy with "early onset."  Under these amendments, early-onset peripheral neuropathy must still become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer must be transient.  There is still no herbicide-related presumption of service connection for "delayed-onset chronic" peripheral neuropathy.  Rather, early onset peripheral neuropathy must manifest within one year of herbicide exposure, for presumptive purposes. 78 Fed. Reg. 54763 -01 (Sept. 6, 2013).

Even if service connection is not warranted under one of the presumptive regulations, this does not preclude a claimant from establishing service connection with proof of direct causation.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  The rationale employed in Combee also applies to claims based on exposure to herbicide exposure.  Brock v. Brown, 10 Vet. App. 155 (1997).

Service connection may also be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  Further, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to codify the Court's holding in Allen, which relates to secondary service connection on the basis of aggravation of a nonservice-connected disorder by a service-connected disability. See 38 C.F.R. § 3.310(b).  The amendment essentially requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991).  While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement.  See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992).


A.  PTSD and Depression

The Veteran asserts that he has an acquired psychiatric disorder, claimed as PTSD and depression that began during his active duty service due to combat situations in Vietnam.  The record does not confirm that the Veteran served in Vietnam.  Personnel records show that he served in Japan as an instrument repairman with the combat crew training group.  His service treatment records show treatment for anxiety in July 1960.  Current medical evidence shows a diagnosis of depressive disorder, but not PTSD.  See, e.g., May 2017 VA examination report.  As there is no current medical diagnosis of PTSD, service connection is not warranted for this disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Alternatively, the Veteran contends that his acquired psychiatric disorder is the result of his service-connected hearing loss and tinnitus.  Medical opinions of record indicate that the Veteran's hearing loss and tinnitus aggravated his depressed mood disorder.  An August 2013 medical opinion notes that the Veteran stated that he missed out on so much conversation and had troubling interpersonal and work relationships based on his level of physical pain, discomfort, and mental health issues.  The examining clinician commented that studies have shown that tinnitus can cause a deeper level of depression if not treated.  The clinician thus found that there was a correlation between the Veteran's tinnitus and his mood disorder, based on a review of the Veteran's claim file.  

A May 2017 VA medical opinion found that the Veteran's depression was not likely due to his hearing loss and tinnitus, but was instead due to combat experiences in Vietnam.  There was no rationale for the opinion with respect to why the depression was not due to hearing loss and tinnitus.  As noted above, while the Veteran is shown to have served in the Air Force in Japan, and contends that he served on missions that required him to land in Vietnam, this has not been corroborated by his personnel records.  No rationale was provided for the opinion that the depression was not due to the tinnitus and hearing loss, and the positive opinion regarding direct incurrence of depression in service was based on inaccurate premise that the Veteran served in Vietnam, which is not supported by the probative evidence of record.  Thus, the May 2017 VA medical opinion has little probative value.

In December 2017, the psychologist who provided the August 2013 medical opinion submitted a supplemental opinion that the evidence supported that the Veteran's depressive disorder was permanently aggravated by his tinnitus, as noted in the May 2017 psychiatric examination report and a January 2012 VA examination for hearing loss and tinnitus.  The psychologist also determined that because the Veteran served with the air rescue squadron in Japan during the Vietnam war and did not have depression prior to service, it was at least as likely as not that the Veteran's depressive disorder began during his term in service and continued uninterrupted since that time with permanent aggravation caused by service-connected tinnitus.

Although there are differing opinions of record regarding the etiology of the Veteran's depression, the most probative medical evidence relates the depression to his tinnitus and hearing loss.  Notwithstanding the finding of anxiety in service, there is no corroborative evidence showing that the Veteran's post-service diagnosis of depression is related to this finding, many years later.

Nonetheless, following a full review of the record, and applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran that the currently diagnosed depression is secondary to his service-connected hearing loss and tinnitus disability.  See 38 C.F.R. § 3.102.  Therefore, the Veteran's claim for service connection for currently diagnosed depression is granted.

B.  Peripheral Neuropathy of the Bilateral Upper and Lower Extremities

Current medical evidence shows a diagnosis of mild sensory predominant mixed sensorimotor polyneuropathy primarily of axonal loss in the bilateral upper and lower extremities.  See February 21, 2013 VA electrodiagnostic study.  It was noted that findings were consistent with age and history of gout, but might also be due to undiagnosed folate deficiency or heavy metal toxicity.  It was further noted that there might be some relation to Agent Orange exposure.  The Veteran stated that his bilateral foot numbness had been bothering him for past year.

While there are findings of current polyneuropathy affecting the bilateral lower and upper extremities, there is no medical evidence linking these disabilities to service.

The Veteran contends that during his service in the Air Force, his plane landed in Vietnam for refueling.  See November 2011 statement.  His personnel records do not confirm this finding, however; and there is no other corroborative evidence of the Veteran serving in Vietnam.  Thus, any presumptive relationship to presumptive exposure to herbicides in Vietnam does not apply to the Veteran's claim.

The evidence also does not otherwise show any direct incurrence in service of peripheral neuropathy of the bilateral upper and lower extremities.  The service treatment records are negative for any findings related to peripheral neuropathy; and none of the post-service medical evidence relates the post-service diagnosis of peripheral neuropathy to service.

The preponderance of the evidence is against the claim; there is no probative evidence favorable to the Veteran to be resolved.  The claim for entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is denied.

C.  Arthritis of the Bilateral Feet

The record shows a diagnosis of arthritis in the right foot in July 2011.  See July 12, 2011 VA x-ray examination report.  However, there is no evidence relating this diagnosis or any diagnosis of arthritis in the left foot to service.

The service treatment records are negative for any findings of arthritis in the bilateral feet or injury to the feet.  There is no evidence of a diagnosis of arthritis in the feet within one year of separation from service.  None of the post-service evidence relates any post-service diagnosis of arthritis in the feet to service.

The preponderance of the evidence is against the claim; there is no probative evidence favorable to the Veteran to be resolved.  The claim for entitlement to service connection for arthritis of the bilateral feet is denied.


ORDER

Entitlement to a schedular rating higher than 10 percent for tinnitus is denied.

Entitlement to service connection for PTSD is denied.

Entitlement to service connection for an acquired psychiatric disorder, to include depression, is granted.

Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied.

Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is denied.

Entitlement to service connection for degenerative arthritis of the bilateral feet is denied.


REMAND

Examinations are warranted to resolve the service connection claim for degenerative arthritis of the bilateral knees, and vertigo, secondary to hearing loss and tinnitus.  The service treatment records show the Veteran was diagnosed with right knee bipartite patella in July 1960 and complained of a locked knee since 1960.  He also reportedly hit his right knee on a trash can in June 1960 and had a finding of tendonitis in the knee.  Post-service evidence shows a diagnosis of arthritis in the bilateral knees.  A medical examination and opinion is warranted to determine whether the post-service diagnoses are related to the findings in service.

As for the vertigo, the Veteran has stated that a doctor suggested that his vertigo was secondary to his hearing loss.  See January 30, 2012 statement.  Vertigo is a disability capable of a layperson's detection.  Examination is warranted to determine whether the Veteran has vertigo secondary to his hearing loss or tinnitus.

As for the claim for an extraschedular rating for tinnitus, the case is referred for extraschedular consideration, particularly with consideration of the Veteran's complaints of dizziness, which are not considered by the rating schedular for tinnitus.  See e.g., Doucette v. Shulkin, 28 Vet. App. 366, 369-71 (2017).  

The issue of entitlement to an extraschedular rating for tinnitus also is deferred pending the resolution of the TDIU claim.  It is "premature for the Board to decline extraschedular consideration where the record was significantly incomplete in a number of relevant areas probative of the issue of employability." Brambley v. Principi, 17 Vet. App. 20, 24 (2003).  Finally, the TDIU claim is intertwined with the service connection claim on appeal, as resolution of those matters could affect the outcome of the TDIU claim.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Make arrangements to obtain any relevant treatment records pertaining to the arthritis of the bilateral knees, vertigo, and tinnitus from the VAMC in Atlanta, dated from May 2017 to present.  The Veteran should be notified of any negative responses and provided with information concerning what further steps VA will make regarding his claim.

2.  Ask the Veteran to identify any pertinent private treatment he has received pertaining to the bilateral knees, vertigo, and tinnitus.  Ask the Veteran to identify the name and address of the doctor who suggested that his vertigo was associated with his hearing loss.  Make reasonable efforts to obtain any relevant evidence identified by the Veteran, and notify him of any negative responses and what further steps VA will make regarding his claim.

3.  Following the completion of the above development, schedule the Veteran for an appropriate VA examination to determine the etiology of the Veteran's arthritis of the bilateral knees.  The VBMS file should be accessible to the examiner for review in conjunction with the examination and the examination report should reflect that the examiner reviewed the VBMS file.  

After a review of the VBMS file and examination of the Veteran, the examiner should answer the following:

(a)  Is the right knee bipartite patella diagnosed in service in July 1960 a congenital disease, or a defect?

(b) If the right knee bipartite patella is a congenital disease, the doctor should state whether it underwent a permanent increase in severity during active service, including from injury from hitting his right knee on a trash can in June 1960 and a finding of tendonitis in the knee in July 1960.  If so, was the increase in severity beyond the natural progress of the condition?

(c)  If the Veteran's right knee bipartite is more properly characterized as a congenital defect, the doctor should state whether it was subject to any superimposed disease or injury during active service, including from hitting his right knee on a trash can in June 1960 and a finding of tendonitis in the knee in July 1960.

(d)  State whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's arthritis of the bilateral knees was caused by any event, disease, or injury in service, and/ or first manifested in service or within one year of separation from service. 

The examiner also should review any newly obtained medical records.  

Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 

A complete rationale for any opinion expressed must be provided.  If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 

4.  Thereafter, schedule the Veteran for an appropriate VA examination of his vertigo.  The VBMS file should be made available to and reviewed by the examiner.  All necessary tests should be performed.

The examiner should state whether it is at least as likely as not (50 percent probability or greater) that his vertigo was caused, or alternatively, aggravated by his service-connected hearing loss and/or tinnitus; or had its clinical onset during active service or is related to any in-service disease, event, or injury, including presumed exposure to acoustic trauma in service.

The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

5.  Next, review the medical opinions obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry.

6.  Determine whether referral for extraschedular determination is warranted for the Veteran's extraschedular rating claim for tinnitus.  38 C.F.R. § 3.321.

7.  Finally, readjudicate the claim on appeal including the claim for a TDIU.  If any of the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs