Citation Nr: 20003383 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 18-00 401A DATE: January 23, 2020 ORDER New and material evidence has been received and the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) with anxiety/depression is reopened. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, claimed as anxiety, depression and personality disorder is granted. Entitlement to an initial rating higher than 10 percent for tinnitus is denied. Entitlement to an effective date earlier than March 1, 2013 for service connection for tinnitus is denied. REMANDED Entitlement to service connection for PTSD is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for back disorder is remanded. Entitlement to service connection for heart disorder is remanded. Entitlement to a compensable rating for bilateral hearing loss prior to May 31, 2016 and higher than 20 percent from that date is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In January 1987 the Veteran was denied service connection for a nervous condition claimed as depression and immature personality. In November 1992 the RO declined to reopen the previously denied (January 1987) claim because the evidence considered was not new and material to the issue of service connection for a personality disorder; the Veteran did not appeal those decisions and they became final. 2. Evidence received since the January 1987 and November 1992 decisions relate to unestablished facts and raises a reasonable possibility of substantiating the claim. 3. Resolving all doubt in the Veteran’s favor, an acquired psychiatric disorder, other than PTSD, claimed as anxiety, depression and personality disorder was incurred as a result of service. 4. The Veteran is assigned the maximum schedular rating for tinnitus and there is no indication that his tinnitus produces such extraordinary symptoms uncontemplated by the schedular rating criteria. 5. The Veteran’s claim for service connection for tinnitus was received at the agency of original jurisdiction (AOJ) on March 1, 2013; there is nothing in the record suggesting a prior date of claim could apply to that award and the effective date assigned is the earliest possible under the law. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of entitlement to service connection for PTSD with anxiety/depression is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, other than PTSD, claimed as anxiety, depression and personality disorder have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to an initial rating higher than 10 percent for tinnitus have not been met. 38 U.S.C. § §§ 1155, 5103; 38 C.F.R. § §§ 3.321, 4.1, 4.7, 4.87, Diagnostic Code (Code) 6260. 4. The criteria for entitlement to an effective date earlier than March 1, 2013 for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.160, 3.400(b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1971 to June 1974. These matters are before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By a January 2018 interim rating decision, the Veteran’s service-connected bilateral hearing loss was increased to 20 percent effective May 31, 2016. The increased rating was not a full grant of the benefit sought and the matter remains before the Board. In addition, the January 2018 interim rating decision granted service connection for left olecranon bursitis, claimed as a left elbow and forearm (formerly evaluated as left forearm/elbow and bilateral shoulder conditions), as this was a full grant of the benefit sought for that claim, it is no longer before the Board for appellant consideration. Under Clemons v. Shinseki, 23 Vet. App. 1 (2009), generally a claim of service connection for a diagnosed psychiatric disability encompasses all psychiatric disabilities shown by the record, however diagnosed. As such, the Board has expanded the Veteran's claim for service connection for PTSD to include generalized anxiety disorder, depression and personality disorder. New and Material Evidence Claim Acquired Psychiatric Disorder Since the January 1987 and November 1992 unappealed rating decisions became final for the claim of service connection for an acquired psychiatric disorder, additional evidence has been associated with the Veteran’s claims file. The evidence includes an April 2015 psychiatric evaluation of the Veteran by a private psychologist who opined that the Veteran’s depression and anxiety started when he was in the service and continued uninterrupted to the present. This evidence is new, as it was not previously of record, and it is material as it suggests a relationship of an acquired psychiatric disorder to the Veteran’s military service, relates to unestablished facts necessary to substantiate the claim for service connection, and raises a reasonable possibility of substantiating the claim. The claim is thus reopened. The claim of entitlement to an acquired psychiatric disorder, other than PTSD, claimed as anxiety, depression and personality disorder is addressed on the merits as follows and the claim of entitlement to PTSD is addressed further on remand. Service Connection The Veteran contends his acquired psychiatric disorder is related to his active service and therefore, service connection is warranted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). The Veteran’s service treatment records show he was diagnosed during active duty with having anxiety, inadequate personality with aggressive tendencies/antisocial personality and nervousness. Post-service in January 1988 the Veteran was afforded a VA examination. He reported having depression, inability to cope with authority, temper tantrums, aggressive behavior and uncontrollable anger. There was no diagnosis rendered associated with these symptoms. In June 1989 he was admitted to a VA facility for mental health treatment. His diagnoses under Axis I were major depression, dysthymic disorder and history of ethanol dependence and poly drug abuse. In February 2014, the Veteran was afforded a VA-contract mental disorders (other than PTSD) examination. After reviewing the Veteran's claims file, interviewing him, and conducting an examination, the examiner diagnosed the Veteran with major depressive disorder, and alcohol and cannabis use disorders, mild, in sustained remission. A nexus opinion was not provided. In April 2015 the Veteran underwent a psychological evaluation by a private psychologist, who reviewed the Veteran’s service and post-service treatment records, interviewed and examined the Veteran and diagnosed the Veteran with having major depressive disorder, recurrent and anxiety. The private psychologist opined that the Veteran’s depression and anxiety started in service and has continued uninterrupted to the present. She concluded that depression and anxiety were more likely than not caused by the Veteran’s time in service. In December 2017, the Veteran was afforded a VA mental disorders (other than PTSD) examination. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting an examination, the examiner diagnosed the Veteran with persistent depressive disorder with anxious distress. The examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran’s current mental health symptoms were incurred in or caused by his time in the military. The examiner further opined that it was less likely than not (less than 50 percent probability) that the Veteran’s current mental health symptoms were aggravated beyond their normal progression by his time in the military. There is conflicting medical evidence in this case. The April 2015 private psychologist opinion indicated the Veteran’s depression and anxiety began in service, whereas the December 2017 VA examiner provided a negative nexus opinion. Both medical professionals reviewed the Veteran’s record and provided rationale for their opinions. After weighing all the evidence, the Board finds that the evidence is at least in equipoise that the Veteran’s acquired psychiatric disorder (other than PTSD) claimed as anxiety, depression and personality disorder is due to his active service. As such, the criteria for service connection for an acquired psychiatric disorder (other than PTSD) claimed as anxiety, depression and personality disorder have been met and the Veteran's claim is granted. Increased Rating Disability ratings are based upon VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. § Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when 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). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Tinnitus The Veteran seeks a rating higher than the 10 percent initially assigned for his tinnitus disability. His tinnitus disability, however, has already been assigned the highest rating of 10 percent available pursuant to 38 C.F.R. § 4.87, Code 6260. While the Notes to Code 6260 allow for the assignment of a compensable evaluation pursuant to Codes 6100, 6200, 6204, or other codes, the Veteran has not demonstrated objective signs of a vestibular disorder, as is required under Code 6204, or any of the abnormalities set forth in Code 6200, including chronic suppurative otitis media, mastoiditis, or cholesteatoma. Likewise, service connection has been separately awarded for bilateral hearing loss. Thus, separate or higher awards cannot be granted on those bases. 38 C.F.R. § 4.14 (avoidance of pyramiding); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (stating that the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (the rule against pyramiding is violated if a Veteran is compensated twice for the same symptom or impairment). Critically, the Veteran has not expressly alleged that his tinnitus warrants an extraschedular rating and, even assuming arguendo that he had, the criteria for extraschedular referral are not met. In so finding, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has set out a sequential three-step analysis, based on the language of 38 C.F.R. § § 3.321(b)(1), to determine whether to refer a case for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). A threshold requirement for such referral is that the pertinent disability picture is not adequately captured by the available schedular criteria. Otherwise, the analysis stops there and no extraschedular referral is warranted. Here, the Veteran’s tinnitus symptoms described in February 2014 and May 2016 VA examinations consist of constant ringing in the ears. Code 6260 assigns a single, 10 percent rating when there is recurrent tinnitus. Citing Dorland’s Illustrated Medical Dictionary, the Court has defined tinnitus as “a noise in the ears, such as ringing, buzzing, roaring, or clicking.” Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the Board finds his tinnitus presentation is fully contemplated by the schedular criteria, and no extraschedular referral is warranted. In light of the above, the Board finds the preponderance of the evidence is against the Veteran’s claim seeking a higher rating for tinnitus, the benefit of the doubt rule does not apply, and the appeal must be denied. Earlier Effective Date The Veteran seeks an effective date earlier than March 1, 2013 for the grant of service connection for tinnitus. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If the claim is received within one year after separation from service, the effective date will be the date following service separation, or the date entitlement arose. 38 U.S.C. §§ 5110(a), (b); 38 C.F.R. § 3.400(b)(2). Effective March 24, 2015, VA amended its regulations regarding claims. The amendment requires claims to be filed on standard VA forms, eliminates constructive receipt of claims, and eliminates informal claims. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Here, the Veteran filed his informal claim of service connection for tinnitus that was received at the AOJ March 1, 2013, well before March 24, 2015. As such, his informal claim is governed by the regulations in effect at the time of its filing, which did not require claims to be filed on standard forms. As the March 1, 2013 correspondence shows an intent to apply for benefits, it is deemed an informal claim. The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). In the context of a claim of service connection, the date of entitlement hinges on when the service-connected disability first manifested itself under all facts found. See McGrath v. Gober, 14 Vet. App. 28, 35 (2000). There is no indication in the record that there is any correspondence or other evidence prior to March 1, 2013 that can reasonably be construed as a claim for service connection for tinnitus. While the Board recognizes the Veteran’s personal belief that the effective date for the grant of service connection for tinnitus should be earlier than March 1, 2013, the governing legal authority is clear and specific, and VA is bound by it. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim of entitlement to an effective date earlier than March 1, 2013, for the grant of service connection for tinnitus is denied. REASONS FOR REMAND The claims of entitlement to service connection for PTSD, COPD, back disorder, and heart disorder, a compensable rating for bilateral hearing loss prior to May 31, 2016 and higher than 20 percent from that date, and a TDIU are remanded for further development. In a December 2017 VA mental disorders examination, the Veteran reported he stopped working five years ago and is receiving Social Security Administration (SSA) benefits. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA is obliged to attempt to obtain and consider records from SSA). The Veteran's record does not indicate that any attempts have been made to obtain records from SSA. Given the record reflects that SSA records may be outstanding and may be pertinent to the Veteran's claims, the Board must remand this matter in order to obtain those records. See 38 C.F.R. § § 3.159(c)(2) and (3); see also Golz, 590 F.3d at 1323 (if a reasonable possibility exists that the SSA records are relevant to a Veteran's claim, VA is required to assist a Veteran in obtaining the identified records). The record shows the Veteran receives treatment from VA for the claimed disorders being remanded. The latest treatment report of record is dated in January 2018. On remand the AOJ should obtain outstanding VA treatment records from January 2018 to the present and associate them with the Veteran’s claims file. As the issue of entitlement to a TDIU raised in connection with this appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is inextricably intertwined with the remanded claims, adjudication of the TDIU issue is deferred until those issues are adjudicated. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) notice letter regarding the TDIU claim. 2. Obtain VA treatment records from January 2018 to the present and associate with the Veteran’s claims file. 3. The AOJ should attempt to obtain and associate with the Veteran's record any outstanding evidence pertaining to any previous application for SSA disability benefits, to include a copy of any decision awarding benefits, and copies of any medical records upon which SSA based its decision. Document all attempts to obtain records and notify the Veteran of any negative results. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Young, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.