Citation Nr: 20004348 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 19-23 629 DATE: January 17, 2020 ORDER The appeal as to the claim of entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to the service-connected coronary artery disease (CAD) and/or acquired psychiatric disorder, is granted. The appeal as to the claim of entitlement to service connection for a left wrist disorder is denied. The appeal as to the claim of entitlement to service connection for a left knee disorder is denied. The appeal as to the claim of entitlement to service connection for a right hip disorder is denied. The appeal as to the claim of entitlement to service connection for a left hip disorder is denied. The appeal as to the claim of entitlement to service connection for an abdominal disorder is denied. The appeal as to the claim of entitlement to service connection for a headache disorder is denied. The appeal as to the claim of entitlement to service connection for a right shoulder disorder is denied. The appeal as to the claim of entitlement to service connection for a left shoulder disorder is denied. The appeal as to the claim of entitlement to service connection for erectile dysfunction (ED) is denied. The appeal as to the claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for right wrist disorder is denied. The appeal as to the claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for right knee disorder is denied. The appeal as to the claim of entitlement to service connection for an acquired psychiatric disorder is moot, and the claim is dismissed for lack of jurisdiction. The appeal as to the claim of entitlement to an effective date earlier than August 14, 2013, for the assignment of an increased 10 percent evaluation for service-connected tinnitus, is denied. The appeal as to the claim of entitlement to an evaluation in excess of 10 percent for service-connected tinnitus is denied. REMANDED The appeal as to the claim of entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to medications prescribed for service-connected disabilities, is remanded. The appeal as to the claim of entitlement to an initial compensable evaluation for service-connected bilateral hearing loss is remanded. The appeal as to the claim of entitlement to an effective date earlier than August 14, 2014, for the grant of service connection for bilateral hearing loss, is remanded. The appeal as to the claim of entitlement to a total disability evaluation based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s OSA disorder is etiologically related to his service-connected coronary artery disease and acquired psychiatric disorder. 2. The Veteran does not have a left wrist disorder. 3. The Veteran does not have a left knee disorder. 4. The Veteran does not have a right hip disorder. 5. The Veteran does not have a left hip disorder. 6. The Veteran does not have an abdominal disorder. 7. The Veteran does not have a headache disorder. 8. The Veteran does not have a right shoulder disorder. 9. The Veteran does not have a left shoulder disorder. 10. The Veteran does not have an ED disorder. 11. A September 1993 rating decision denied the claim of entitlement to service connection for a right wrist disorder; the Veteran did not appeal the decision and it became final. 12. The evidence received subsequent to the September 1993 rating decision, by itself, or in conjunction with the previously considered evidence, does not relate to an established fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of entitlement to service connection for a right wrist disorder. 13. A May 2006 rating decision denied the claim of entitlement to service connection for a right knee disorder; the Veteran did not appeal the decision and it became final. 14. The evidence received subsequent to the May 2006 rating decision, by itself, or in conjunction with the previously considered evidence, does not relate to an established fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee disorder. 15. The Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder was granted in a rating decision issued by the Agency of Original Jurisdiction (AOJ) in July 2019, with an effective date of October 27, 2015. 16. Because the Veteran's compensation claim for tinnitus was filed over one year after the effective date of June 10, 1999, of the liberalizing law at issue, the 10 percent rating for the service-connected tinnitus cannot be assigned earlier than one year prior to the date of receipt of the claim for increase on August 14, 2014. 17. The Veteran’s service-connected tinnitus disability has been assigned the maximum schedular evaluation for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). 2. The criteria for establishing entitlement to service connection for a left wrist disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for establishing entitlement to service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 4. The criteria for establishing entitlement to service connection for a right hip disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 5. The criteria for establishing entitlement to service connection for a left hip disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 6. The criteria for establishing entitlement to service connection for an abdomen disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 7. The criteria for establishing entitlement to service connection for a headache disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 8. The criteria for establishing entitlement to service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 9. The criteria for establishing entitlement to service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 10. The criteria for establishing entitlement to service connection for an ED disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 11. The September 1993 rating decision denying the Veteran’s claim of entitlement to service connection for a right wrist disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2019). 12. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a right wrist disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 13. The May 2006 rating decision denying the Veteran’s claim of entitlement to service connection for a right knee disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2019). 14. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a right knee disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 15. The Board lacks jurisdiction over the claim of service connection for an acquired psychiatric disorder, because that claim has been granted and rendered moot. 38 U.S.C. § 7104 (a), 7105(d)(5) (2012); 38 C.F.R. § 19.7, 20.101, 20.200, 20.202 (2019). 16. An effective date of August 14, 2013, for the award of a 10 percent evaluation for service-connected tinnitus is the earliest assignable by law. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.102, 3.114, 3.151, 3.155, 3.159, 3.400 (2019). 17. The criteria for establishing entitlement to an initial evaluation in excess of 10 percent for service-connected tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code 6260 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from January 1973 to January 1993. His service was under honorable conditions. These matters are on appeal from a November 2016 rating decision. Service Connection – Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2019). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied, "when a claimant has a disability at the time a claim for VA disability compensate on is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for OSA, to include as secondary to the service-connected CAD and/or acquired psychiatric disorder. The Veteran contends that his current sleep disorder is related to service, and in the alternative to his service-connected CAD and/or acquired psychiatric disorder. Service treatment records are negative for complaints of, treatment for, or a diagnosis of a sleep disorder, to include OSA. Following service, the Veteran’s original claim for VA compensation for a sleep disorder was received in September 2016. Post-service treatment records include a November 2017 sleep study that demonstrates a diagnosis of mild OSA. In a November 2019 opinion, M.B., MD, the Veteran’s private physician indicated that she reviewed the record, to include the aforementioned sleep study. M.B. interviewed the Veteran and cited relevant medical research, and concluded that the Veteran’s current OSA was caused by and aggravated by his service-connected CAD and acquired psychiatric disorder. M.B. noted the Veteran’s reported history of loud snoring, difficulty staying asleep, and symptoms of exhaustion during the day, subsequent to his diagnoses of CAD and depression. M.B. further stated that substantial literature in the medical community supports a positive relationship between psychiatric complications, such as the Veteran’s, and OSA, as demonstrated by chronic sleep impairment. Specifically, she cited to research that shows a link between depression and a higher prevalence of a diagnosis of OSA. Significantly, M.B. noted that OSA is caused by the collapse of the pharynx during sleep, which can be caused by a combination of weight gain and fluid retention. M.B. further noted that the Veteran had difficulty engaging in physical activity due to symptoms of CAD, to include dyspnea, fatigue, and angina, making it hard for him to manage his weight. In this regard, M.B. noted that the Veteran gained a significant amount of weight since discharge from service. M.B. indicated that studies demonstrate that CPAP treatment decreased the symptoms of OSA and psychiatric disorders, such as depression. In this regard, M.B. noted that the Veteran used a CPAP every night but still experienced symptoms of tiredness during the day, and difficulty staying on task. The Board finds that the evidence of record supports a grant of service connection for OSA due to the service-connected CAD and acquired psychiatric disorder. The clinical evidence of record establishes that the Veteran has a current diagnosis of OSA in November 2017. Further, the Board finds the Veteran’s statements concerning the nature of his symptoms and onset after diagnoses of CAD and depression, to be competent and credible. Moreover, the November 2019 private opinion is presented as in support of the Veteran’s claim. Accordingly, secondary service connection for OSA is warranted. As such, the benefit of the doubt must be resolved in the favor of the Veteran. Accordingly, entitlement to service connection for OSA is warranted. 2. Entitlement to service connection for a left wrist disorder. See argument at 10 3. Entitlement to service connection for a left knee disorder. See argument at 10 4. Entitlement to service connection for a right hip disorder. See argument at 10 5. Entitlement to service connection for a left hip disorder. See argument at 10 6. Entitlement to service connection for an abdominal disorder. See argument at 10 7. Entitlement to service connection for a headache disorder. See argument at 10 8. Entitlement to service connection for a right shoulder disorder See argument Below at 10 9. Entitlement to service connection for a left shoulder disorder See argument Below at 10 10. Entitlement to service connection for ED. The Veteran contends that his current left wrist, left knee, right hip, left hip, abdominal, headache, right shoulder, left shoulder, and ED disorders are related to active service. Service treatment records are negative for complaints of, treatment for, or a diagnosis of left wrist, left knee, right hip, left hip, headache, right shoulder, left shoulder, and/or ED disorder. The report of a June 1979 examination notes the Veteran’s report of stomach trouble in 1975. An April 1985 record notes the Veteran’s report of right shoulder pain. Post-service VA outpatient and private treatment records are negative for complaints of, treatment for, or a diagnosis of left wrist, left knee, right hip, left hip, abdominal, headache, left shoulder, and/or an ED disorder. These records are also negative for a diagnosis of a right shoulder disorder. The Board recognizes that the Veteran might sincerely believe that he has left wrist, left knee, right hip, left hip, abdominal, headache, right shoulder, left shoulder, and ED disabilities that are related to his active service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran is competent to report his symptoms, the record does not reflect that he possesses the requisite medical training or expertise necessary to render his statements as competent evidence on matters such as medical diagnosis or medical causation. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). According to a November 2011 private treatment record, the Veteran had been suffering from right shoulder pain and decreased range of motion. There is no evidence that this was associated with a chronic disability. The Board recognizes that under Saunders v. Wilkie, 886 F.3d 1356 (2018), pain with functional impairment alone is sufficient to show the presence of a current disability. However, in the present case, the Veteran’s pain has been shown to exist for acute periods of time without evidence of chronic functional impairment. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. §§ 1110, 1131; see also Brammer, 3 Vet. App. at 225 (1992). As above, the evidence does not show that the Veteran has left wrist, left knee, right hip, left hip, abdominal, headache, right shoulder, left shoulder and/or ED disorder(s), nor has such diagnosis been present at any time during the period of the appeal. Accordingly, the Board finds that the probative evidence is against finding that the Veteran has current left wrist, left knee, right hip, left hip, abdominal, headache, right shoulder, left shoulder, and/or ED disabilities. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). New and Material Evidence – General Legal Criteria Generally, a claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed about the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 11. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right wrist disorder. The Veteran’s claim of entitlement to service connection for a right wrist disorder was initially denied by the RO in a September 1993 rating decision; he did not appeal the decision. Evidence considered at the time of the rating decision consisted of service treatment records, and the Veteran’s statements indicating that his right wrist disorder was due to a 1975 in-service injury, a March 1993 VA examination report that is not relevant, and a VA x-ray report demonstrating an impression of a normal right knee. In September 2016, the Veteran submitted a statement requesting that the claim of entitlement to service connection for a right wrist disorder be reopened. In the November 2016 decision on appeal, the RO declined to reopen the issue of entitlement to service connection for a right wrist disorder. Notwithstanding the RO’s actions, the Board must make its own determination on this matter. Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Since the September 1993 rating decision, the Veteran has not submitted or identified evidence demonstrating a relationship between his claimed right wrist disorder and his active service. In this regard, the evidence received since the September 1993 rating decision includes duplicate service treatment records, duplicate statements from the Veteran, indicating that his right wrist disorder began during active service, and private treatment records dated in October 2002, May 2012, August 2013, November 2017, November 2019, and December 2019, that show treatment for multiple health issues; these records are either not relevant or redundant. Likewise, VA examination reports dated in October 2006, through December 2019, are also not relevant. Finally, private examination reports dated in November and December 2019, are not relevant. In sum, the evidence received since the September 1993 rating decision still does not reflect a diagnosis of a right wrist disorder or a finding of a nexus between the Veteran’s claimed right wrist disorder and his active service. Thus, even if some of this evidence could, in a limited sense, be considered “new,” none of the evidence is material because it provides no reasonable possibility of substantiating the claim. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. See, Shade, supra. Thus, the Board finds that new and material evidence has not been submitted, and the requirements of 38 C.F.R. § 3.156(a) have not been satisfied. In light of the aforementioned, the request to reopen a claim of entitlement to service connection for right wrist disorder must be denied. Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit of the doubt doctrine is inapplicable. Annoni v. Brown, 5 Vet. App. 463 (1993). 12. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disorder. The Veteran’s claim of entitlement to service connection for a right knee disorder was initially denied by the RO in a September 1993 rating decision; he did not appeal the decision. In January 2006, he submitted a claim to reopen the issue of entitlement to service connection for a right knee disorder. In a May 2006 rating decision, the previous denial was confirmed and continued; he did not appeal the decision. Evidence considered at the time of the May 2006 rating decision consisted of service treatment records, VA treatment records date in March 1993 noting an impression of a normal right knee, and statements from the Veteran indicating that his right knee disorder was due to an unspecified in-service injury. In September 2016, the Veteran submitted a statement requesting that the claim of entitlement to service connection for a right knee disorder be reopened. In the November 2016 decision on appeal, the RO declined to reopen the issue of entitlement to service connection for a right knee disorder. Notwithstanding the RO’s actions, the Board must make its own determination on this matter. Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Since the May 2006 rating decision, the Veteran has not submitted or identified evidence demonstrating a relationship between his claimed right knee disorder and his active service. In this regard, the evidence received since the May 2006 rating decision includes duplicate service treatment records, duplicate statements from the Veteran, indicating that his right knee disorder began during active service, and private treatment records dated in May 2012, August 2013, November 2017, November 2019, and December 2019, that show treatment for multiple health issues; these records are either not relevant or redundant. Likewise, VA examination reports dated in October 2006, through December 2019, are also not relevant. Finally, private examination reports dated in November and December 2019, are not relevant. In sum, the evidence received since the May 2006 rating decision still does not reflect a diagnosis of a right knee disorder or a finding of a nexus between the Veteran’s claimed right knee disorder and his active service. Thus, even if some of this evidence could, in a limited sense, be considered “new,” none of the evidence is material because it provides no reasonable possibility of substantiating the claim. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. See, Shade, supra. Thus, the Board finds that new and material evidence has not been submitted, and the requirements of 38 C.F.R. § 3.156(a) have not been satisfied. In light of the aforementioned, the request to reopen a claim of entitlement to service connection for right knee disorder must be denied. Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit of the doubt doctrine is inapplicable. Annoni v. Brown, 5 Vet. App. 463 (1993). Dismissal as Moot 13. Entitlement to service connection for an acquired psychiatric disorder. In this case, the Veteran's claim of service connection for an acquired psychiatric disorder was granted in a rating decision issued by the AOJ in July 2019. As a general matter, the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.202 (2019). Here, as a result of the AOJ's action, there no longer remains a case or controversy with respect to this claim. Therefore, the Board lacks jurisdiction over this issue because it has been granted and rendered moot on appeal. 38 U.S.C. § 7104, 7105 (2012); 38 C.F.R. § 19.7, 20.101, 20.200, 20.202 (2019). Therefore, dismissal of this claim is warranted. Earlier Effective Date - General Legal Criteria Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2019). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110 (a). If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). Where compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue, the effective date of the increased shall be fixed in accordance with facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C. § 5110 (g) (2012); 38 C.F.R. § 3.114 (a) (2019); McCay v. Brown, 9 Vet. App. 183, 187 (1996). Similarly, an increase based on revised, liberalizing rating criteria cannot be effective prior to the effective date of the changed criteria, unless specifically provided by the revised regulations. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000 (Apr. 10, 2000) (regarding retroactive application of revised criteria). If a claim is reviewed on the initiative of VA within one year from the effective date of the liberalizing law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114 (a)(1). If a claim is reviewed on the initiative of VA more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114 (a)(2). If a claim is reviewed at the request of the claimant more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114 (a)(3). In order to be eligible for a retroactive award under § 3.114, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter. The provisions of § 3.114 are applicable to original and reopened claims as well as claims for increase. 38 C.F.R. § 3.114 (a). 14. Entitlement to an effective date earlier than February 1, 1993, for the grant of service connection for tinnitus. The Veteran asserts that he is entitled to an earlier effective date for the grant of service connection for tinnitus. Tinnitus is defined as "a noise in the ears such as ringing, buzzing, roaring, or clicking." Smith v. Principi, 17 Vet. App. 168 (2003). The Court has specifically held that tinnitus is a type of disorder capable of lay observation and description. Charles v. Principi, 16 Vet. App. 370 (2002). Prior to 1976, Diagnostic Code 6260 provided a 0 percent rating for tinnitus. 38 C.F.R. § 4.84 (b) (1975). The pre-1976 version of Diagnostic Code 6260 also contained a reference to Diagnostic Codes 8045 and 8046, which allowed for assignment of a 10 percent rating for subjective symptoms, such as tinnitus, which resulted from head trauma or cerebral arteriosclerosis, but without mention of acoustic trauma. Effective on March 10, 1976, Diagnostic Code 6260 was revised to allow for a 10 percent rating for persistent tinnitus that was a symptom of head injury, concussion, or acoustic trauma. 38 C.F.R. § 4.84 (b) (1976); 41 Fed. Reg. 11291 (March 10, 1976). The March 1976 change in the regulation amounts to a liberalizing change, as it now provided for a 10 percent compensable rating for persistent tinnitus from acoustic trauma. Effective June 10, 1999, Diagnostic Code 6260 for was again revised to allow for a 10 percent rating for tinnitus, with no mention of etiology as a factor. 38 C.F.R. § 4.87 (2000); 64 Fed. Reg. 25202-25210 (May 11, 1999). The June 1999 change in the regulation amounts to a liberalizing change, as it now provided for a 10 percent rating for "recurrent" tinnitus without a requirement that it had to be "persistent," and with no mention of etiology as a factor. Effective June 13, 2003, Diagnostic Code 6260 was again revised to clarify existing VA practice that only a single 10 percent rating 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, Note (2) (2017); 68 Fed. Reg. 25822 (June 2003); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). That, however, does not amount to a liberalizing change, but rather a clarification of existing law. By way of background, the Board notes that the Veteran initiated his original claim for entitlement to service connection for tinnitus in February 1993. In a September 1993 rating decision, service connection for tinnitus was granted and a noncompensable rating was assigned, effective February 1, 1993. The Veteran did not appeal the rating or the effective date, and the decision became final. In August 2014, the Veteran filed a claim for an increased rating. In a February 2015 rating decision, the RO increased the rating for tinnitus from noncompensable to 10 percent disabling, effective, August 14, 2013. The Veteran did not appeal the decision and it became final. In September 2016, the Veteran filed a claim of entitlement for a rating in excess of 10 percent for tinnitus. In the November 2016 rating decision on appeal, the 10 percent rating was continued. In April 2017, the Veteran filed a notice of disagreement with the continued 10 percent rating and effective date of the assigment of the increased 10 percent rating. The Veteran perfected the appeal. The Board acknowledges that the Veteran had recurrent tinnitus due to acoustic trauma suffered during service on the effective date of the liberalizing law of June 10, 1999, and continuously thereafter. 38 C.F.R. § 3.114 (a). Nevertheless, the Board finds that, as a matter of law, the Veteran is not entitled to an effective date earlier than August 14, 2013, for the assignment of an increased 10 percent rating for his service-connected tinnitus disability. In this regard, the claims file does not contain any communication from the Veteran or his representative indicating an intent to seek, or a belief in entitlement to, an increased rating for tinnitus after the June 1999 liberalizing amendment for tinnitus, but prior to the August 14, 2014, date of the actual claim for increase. 38 C.F.R. §§ 3.1 (p), 3.155(a). More than one year had already passed since the June 1999 liberalizing law that permitted a 10 percent rating for tinnitus. Therefore, the Veteran is only entitled to an effective date up to one year prior to the date of the claim for an increased rating. As the evidence of record showed recurrent tinnitus one year prior to the date of the claim, August 14, 2014, an effective date of August 14, 2013, but no earlier, is warranted. In sum, there is no evidence of record demonstrating that an increased rating claim for the Veteran’s service-connected tinnitus was reviewed on the initiative of VA or at the Veteran's request within one year after the effective date of the liberalizing legislation of June 10, 1999. 38 C.F.R. § 3.114 (a)(1). The Veteran does not contend otherwise. Likewise, there is no evidence of record that a tinnitus claim was reviewed on the initiative of VA more than one year after the liberalizing legislation. 38 C.F.R. § 3.114 (a)(2). The Veteran does not contend otherwise. Based on the foregoing, the claim for an earlier effective date for the assignment of a 10 percent rating for the service-connected tinnitus prior to August 14, 2014, must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Increased Rating – Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2018). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2019). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2018) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 15. Entitlement to an initial evaluation in excess of 10 percent for service-connected tinnitus. The Veteran contends that he is entitlement to an evaluation in excess of 10 percent for his service-connected tinnitus disability. The Veteran’s tinnitus disability is rated pursuant to Diagnostic Code 6260. 38 C.F.R. § 4.87. For recurrent tinnitus, the maximum schedular evaluation is 10 percent. As the Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for the entire rating period on appeal, the Board finds that there is no legal basis upon which to award a higher schedular evaluation for tinnitus. As such, a rating in excess of 10 percent for tinnitus is not warranted on a schedular basis. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to service connection for GERD, to include as due to medications prescribed for service-connected disabilities. The Veteran contends that his current GERD disorder began during active service, and in the alternative, as a result of medications prescribed for his service-connected disabilities. Specifically, he asserts that he experienced chest pain and reflux problems during service. He also asserts that his symptoms of reflux have progressively worsened since their initial onset. Service treatment records include a November 1972 induction physical examination, which is negative for complaints of, treatment for, or a diagnosis of GERD. A November 1973 record includes the examiner’s notation of “epigastric,” and the Veteran’s report of “burning” symptoms in his throat. A June 1979 consultation notes the Veteran’s report of chest pain. A June 1979 examination notes the Veteran’s report of chest pain and stomach trouble; the examiner noted symptoms of chest pain for 6 months and noted a question mark next to “gastro.” A December 1987 record notes the Veteran’s report of chest pain. The September 1992 separation examination includes the Veteran’s report of recent gain or loss of weight. Post-service treatment records include private records dated in October 2002, February 2003, that indicate diagnosis of reflux and GERD. The Veteran underwent a VA examination in October 2016, during which he reported a long history of reflux. He further indicated that he took Omeprazole to treat his reflux symptoms. Upon examination and review of the record, the examiner diagnosed GERD. The examiner opined that the Veteran’s current GERD was “less likely” related to his active service. In this regard, the examiner noted the service treatment records, which show episodes of gastroenteritis during service, and concluded that there were no records consistent with reflux. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2019). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. The examiner’s opinion is inadequate to adjudicate the claim, as the examiner noted a current diagnosis of GERD, however, he failed to provide an opinion as to the etiology of the disorder. In addition, the examiner failed to address secondary service-connection, and the medications prescribed for the Veteran’s service-connected disabilities. Accordingly, another medical opinion is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to an initial compensable evaluation for service-connected bilateral hearing loss. The Veteran contends that he is entitled to an initial compensable evaluation for his service-connected bilateral hearing loss disability. In this regard, the record reflects the Veteran's assertion that he experienced extreme difficulty understanding speech when background noise is present. Because the most recent October 2016 VA audiological examination report appears to potentially not be representative of the current severity of the Veteran's bilateral hearing loss, the claim must be remanded for a more contemporaneous VA examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). 3. Entitlement to an effective date earlier than August 14, 2014, for the grant of service connection for bilateral hearing loss. See argument Below at 4 4. Entitlement to a TDIU due to service-connected disabilities. Finally, since the Veteran’s claim for increased ratings and his claim of entitlement to a TDIU, relies in part on his disability ratings, these issues cannot be addressed until the above development has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely ties together that a final Board decision cannot be rendered unless both are adjudicated). Further, development to obtain any outstanding medical records pertinent to the Veteran’s claims should be completed. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA outpatient treatment records, and any private treatment records identified by the Veteran. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following review of the record, the physician should state a medical opinion with respect to GERD present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that GERD manifested during, or as a result of, active military service. If not, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the GERD disorder was caused or permanently worsened by the service-connected coronary artery disease and/or depressive disorder, to include medications prescribed for these service-connected disabilities. If the physician believes that a GERD disorder was permanently worsened by a service-connected disorder(s), to include medication prescribed for the service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 3. Then, the Veteran should be scheduled for a VA audiological examination by an appropriate examiner to determine the current degree of severity of his service-connected bilateral hearing loss disability. All pertinent evidence of record should be made available to and reviewed by the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include an audiogram performed by a stated licensed audiologist. Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 1000, 2000, 3000, and 4000 Hertz, provide the puretone threshold average, and must also state the results of the word recognition test, in percentages, using the Maryland CNC test. The examiner must also comment on the effect that the Veteran's bilateral hearing loss disability has upon his daily functioning. 4. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 5. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, 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.