Citation Nr: 20034584 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 16-12 098 DATE: May 18, 2020 ORDER For the entire period prior to December 17, 2014, entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to a compensable rating (prior to August 2, 2018) and a rating in excess of 10 percent (from August 2, 2018) for bilateral eye corneal scars to include right eye traumatic cataract is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) is remanded. FINDINGS OF FACT 1. For the entire period prior to December 17, 2014, the Veteran is now considered to have had only one noncompensable service-connected disability, because his bilateral corneal scars to include right eye traumatic cataract have been characterized together as one disability (rated 0 percent under Diagnostic Code (DC) 6027-6080) for that entire period. 2. The Veteran has also been in receipt of a compensable evaluation since March 21, 2013 (i.e., the effective date for his award of service connection at a 100 percent rating for major depressive disorder with unspecified trauma and stressor related disorder, which was granted in a December 2019 rating decision). CONCLUSION OF LAW For the entire period prior to December 17, 2014, the criteria for entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had an honorable period of active duty from June 29, 1977 to June 28, 1981. [He also had an additional period of active duty from June 29, 1981 to January 14, 1985; however, a July 1988 administrative decision determined that his discharge for such period was under dishonorable conditions and therefore is a bar to VA benefits for that period.] In February 2018, the current issues were remanded by another Veterans Law Judge for additional development. The case has now been assigned to the undersigned Veterans Law Judge. The Veteran had also initiated an appeal of the denial of service connection for a psychiatric disability. After this issue was remanded by the Board in February 2018, a December 2019 rating decision granted service connection at a 100 percent rating for major depressive disorder with unspecified trauma and stressor related disorder. Consequently, as this matter has been granted in full, it is not before the Board. Entitlement to a 10 percent evaluation (prior to December 17, 2014) based on multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324. When a Veteran suffers from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. This provision is predicated solely on the existence of two or more noncompensable service-connected disabilities. In conjunction with filing his current increased rating claim in March 2013 for his service-connected bilateral eye corneal scars to include right eye traumatic cataract, the Veteran sought entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324. At the time of such claim in March 2013, his only service-connected disabilities were two separately rated noncompensable eye disabilities: bilateral corneal scars (rated 0 percent under DC 6099-6027), and right eye traumatic cataract associated with bilateral corneal scars (rated 0 percent under DC 6027). In its February 2018 decision, upon finding that the Veteran had been in receipt of a compensable evaluation since December 17, 2014 (i.e., the effective date for his award of service connection at a 10 percent rating for tinnitus, which was granted in a February 2015 rating decision), the Board: (1) denied the issue of entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 for the period beginning on December 17, 2014 as a matter of law; and (2) remanded the issue of entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 for the period prior to December 17, 2014 as being inextricably intertwined with the other claims being remanded at that time. Thereafter, in a December 2019 rating decision, the Agency of Original Jurisdiction (AOJ) determined that the Veteran’s bilateral corneal scars and his right eye traumatic cataract needed to be rated together as one disability under DC 6027-6080 due to their overlapping symptoms and resulting disability, characterized as bilateral corneal scars to include right eye traumatic cataract, and granted an increased 10 percent rating for such disability effective August 2, 2018 (i.e., the date of a VA eye examination). The text of the December 2019 rating decision explained why his eye disabilities were being combined into one disability in accordance with 38 C.F.R. § 4.14. It also referenced a June 2011 rating decision which had previously informed the Veteran that while he was being service connected for both corneal scars and right eye cataract, regulations precluded VA from assigning separate evaluations for corneal scars and right eye cataract due to their overlapping symptomatology. The June 2011 rating decision further explained that future ratings would evaluate the right eye cataract with the corneal scars. The accompanying codesheet for the December 2019 rating decision reflected the new characterization of the Veteran having only one service-connected eye disability (i.e., bilateral corneal scars to include right eye traumatic cataract), rated as 0 percent disabling prior to August 2, 2018 and rated as 10 percent disabling beginning on August 2, 2018. [The Board notes that this new characterization did not result in any reduction of his combined disability rating for the period prior to August 2, 2018.] As indicated above, the provision of 38 C.F.R. § 3.324 is predicated solely on the existence of two or more noncompensable service-connected disabilities. Therefore, if there is only one noncompensable service-connected disability, and/or if a compensable evaluation for any service-connected disability is awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot. See Butts v. Brown, 5 Vet. App. 532, 541 (1993). In this case, for the entire period prior to December 17, 2014, the Veteran is now considered to have had only one noncompensable service-connected disability, because his bilateral corneal scars to include right eye traumatic cataract have been characterized together as one disability (rated 0 percent under DC 6027-6080) for that entire period. Consequently, the issue of entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 is moot for this entire period and must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran has also been in receipt of a compensable evaluation since March 21, 2013 (i.e., the effective date for his award of service connection at a 100 percent rating for major depressive disorder with unspecified trauma and stressor related disorder, which was granted in a December 2019 rating decision). Such award further moots any entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 for the period beginning on March 21, 2013. REASONS FOR REMAND As an initial matter, the record reflects that there are outstanding treatment records not currently associated with the claims file that may be pertinent to the Veteran’s claims remaining on appeal. Specifically, on a February 2019 VA Form 21-4142a (General Release for Medical Provider Information to VA), the Veteran noted that he had received treatment from three VA facilities (i.e., the Columbia VA Health Care System, the Durham VA Health Care System, and the Charleston VA Medical Center) from 2013 to the present. However, while the most recent VA treatment record in the claims file from the Columbia VA Health Care System is dated in February 2020, there are no VA treatment records in the claims file from the Durham VA Health Care System which are dated after November 2010 or from the Charleston VA Medical Center which are dated after January 2016. In addition, the evidence of record indicates that the Veteran applied for disability benefits from the Social Security Administration (SSA), as documented in a June 2016 VA treatment record (wherein he stated that he was going to apply for SSA benefits that day) and on a February 2020 SSA inquiry form (noting a “Denied Claim”). However, the Veteran’s SSA records are not currently in the claims file. On remand, all records pertaining to any applications for SSA disability benefits, as well as any decisions or determinations regarding such benefits, should be obtained and associated with the claims file. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). 1. Entitlement to service connection for headaches. The Veteran contends that his current headache disability began or was aggravated during his honorable military service and has continued to the present. He has also alleged that his current headache disability is secondary to his service-connected psychiatric disability (major depressive disorder with unspecified trauma and stressor related disorder), his service-connected tinnitus, his service-connected eye disability (bilateral eye corneal scars to include right eye traumatic cataract), and/or his service-connected bilateral hearing loss. In its February 2018 decision, upon finding that new and material evidence had been received, the Board reopened the claim of entitlement to service connection for headaches and then remanded that claim for additional development. As an initial matter, the Board notes that there is a question as to whether the Veteran’s headache disability preexisted his honorable period of military service from June 1977 to June 1981. Specifically, the August 2017 narrative report accompanying an August 2017 Headaches Disability Benefits Questionnaire (DBQ) noted the Veteran’s report that he had occasional headaches prior to his service. There is no evidence of record to show that the Veteran’s headaches are either a congenital disease or a congenital defect. As noted above, the Veteran had one period of honorable active duty (i.e., from June 1977 to June 1981). Therefore, the current claim is based on a period of service for which he has “Veteran” status. For the Veteran’s honorable active duty period from June 1977 to June 1981, the Board notes the following findings. On a December 1976 Report of Medical History prior to enlistment, the Veteran indicated that he had a history of frequent or severe headache, and it was noted that his headaches were not incapacitating. On that same date, his December 1976 service entrance examination report did not include any notations of defects, infirmities, or disorders regarding headaches. During his honorable service, an October 1979 service treatment record (STR) documented that when he was entering a truck, an automatic weapon fired and a blank cartridge shot into his face, causing injury to both of his eyes; however, no headaches were reported at that time. There are no STRs documenting any complaints, findings, diagnosis, or treatment of headaches at any time during his honorable service period. The August 2017 private opinion reflects that the Veteran reported to the physician that he experienced headaches prior to service, but that the headaches became more frequent and intense during service. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). As noted above, the Veteran’s December 1976 service entrance examination is absent of any notations of defects, infirmities, or disorders regarding headaches. Thus, headaches were not noted on entrance; however, the Veteran did report at that time that he had frequent or severe headaches. Additionally, the Veteran has reported that he experienced headaches during service and the evidence is at least in equipoise as to whether headaches manifested during service. Therefore, the presumption of soundness attaches. However, the Board finds that there is not clear and unmistakable evidence that a chronic headache disability preexisted the Veteran’s service, as the Veteran reported only having occasional non-incapacitating headaches. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). The medical evidence of record shows that he was diagnosed with tension headaches on an August 2017 Headaches DBQ and that he was diagnosed with migraine headaches at a July 2018 VA headaches examination. As noted above, his STRs documented an in-service incident in October 1979 wherein an automatic weapon fired and a blank cartridge shot into his face, causing injury to both of his eyes. In the August 2017 narrative report accompanying the August 2017 Headaches DBQ, a private physician opined that it was as likely as not that the Veteran’s headaches were aggravated “by events” during his military service; however, the only rationale provided for this opinion was a general statement (“It is known that damage to the auditory system resulting in tinnitus can also cause headaches”) which did not address the Veteran’s specific history or disability picture with regard to his headaches. In a February 2020 medical opinion, the July 2018 VA headaches examiner opined that it was less likely as not (less than 50 percent probability) that any headaches or headache diagnosis present during the period of the current claim originated during the Veteran’s period of honorable active service or were otherwise etiologically related to such service period; however, the rationale provided for this opinion was based on an inaccurate factual premise, as the VA examiner stated that after the December 1976 Report of Medical History noted a history of headaches for the Veteran, “the Veteran did not report headache concerns to his treating medical providers until 2017” – when in fact the Veteran’s VA treatment records first revealed his complaint of a “pounding head” in June 2000 and subsequently documented numerous instances of treatment for headaches, including throughout 2008, in December 2010, in August 2011, throughout 2014, in November 2015 (noting headaches for 20 years), and in August 2017 (when he reported “having chronic headache since he was shot in the head when he was in service”). With regard to the Veteran’s contention that his current headache disability is secondary to his service-connected psychiatric disability (major depressive disorder with unspecified trauma and stressor related disorder), his service-connected tinnitus, his service-connected eye disability (bilateral eye corneal scars to include right eye traumatic cataract), and/or his service-connected bilateral hearing loss, the Board notes the following pertinent evidence. A February 2008 VA treatment record noted the Veteran’s report that his “headaches worsen when he thinks or talks about [the in-service] incident where M60 blast went off near his face.” A March 2008 VA treatment record was the first to note that his active prescription of Quetiapine Fumarate (a psychiatric medication) may cause headache. An August 2011 VA treatment record noted that he had discontinued taking Venlafaxine (a psychiatric medication) one week prior because he was having chronic headaches. In the August 2017 narrative report accompanying the August 2017 Headaches DBQ, a private physician opined that it was as likely as not that the Veteran’s headaches were both caused and aggravated by his service-connected tinnitus as well as his psychotic disorder; however, the rationale provided for this opinion was based on research studies addressing general correlations between the onset and severity of headaches and audiological and psychiatric disorders, as well as the Veteran’s reports that when his tinnitus is “particularly bothersome” or when his stress, panic, depression, and/or lack of sleep are increased, these factors will cause or bring on headache pain or exacerbate existing headache pain – but such rationale did not address whether his service-connected disabilities had initially caused his headache disability or whether such service-connected disabilities aggravated his headache disability beyond its natural progression. At his July 2018 VA headaches examination, the VA examiner noted that the Veteran had “a long history of mental health disorder and substance abuse since his time in the service which could be a contributing factor to the frequency and intensity of the noted headaches”; however, this opinion is speculative in nature and was not accompanied by rationale. In a February 2020 medical opinion, the July 2018 VA headaches examiner opined that it was less likely as not (less than 50 percent probability) that any headaches or headache diagnosis present during the period of the current claim were caused or aggravated (defined therein as “permanently worsened”) by the Veteran’s service-connected tinnitus, his service-connected eye disability (bilateral eye corneal scars to include right eye traumatic cataract), or his service-connected bilateral hearing loss; however, the rationale provided for this opinion only addressed the theory of causation (“Based on commonly accepted medical literature[,] tinnitus, corneal scars, right eye traumatic cataract[,] and BHL [bilateral hearing loss] do not cause migraine headaches. In addition, commonly accepted medical research has not established a causal relationship between mental illness and migraine headaches”) and did not address the proper standard of aggravation (i.e., any increase in severity beyond the natural progression of the condition) or provide any rationale regarding the theory of aggravation. On remand, after all outstanding treatment records have been associated with the claims file, an addendum medical opinion with supportive rationale should be obtained in order to adequately address the theories of direct service connection and secondary service connection with regard to the Veteran’s headaches. 2. Entitlement to an initial compensable rating for bilateral hearing loss. The Veteran contends that he is entitled to an initial compensable rating for his service-connected bilateral hearing loss. As outlined above, the record reflects that there are outstanding treatment records not currently associated with the claims file that may be pertinent to this claim, including VA treatment records and SSA records. On remand, all outstanding treatment records should be obtained and associated with the claims file. 3. Entitlement to a compensable rating (prior to August 2, 2018) and a rating in excess of 10 percent (from August 2, 2018) for bilateral eye corneal scars to include right eye traumatic cataract. The Veteran contends that he is entitled to higher ratings for his service-connected bilateral eye corneal scars to include right eye traumatic cataract. During the pendency of the instant appeal, effective May 13, 2018, VA revised the criteria for rating disabilities of the organs of special sense (including eyes). See 83 Fed. Reg. 15,321-322 (Apr. 10, 2018). As discussed above, in a December 2019 rating decision, the AOJ determined that the Veteran’s bilateral corneal scars and his right eye traumatic cataract needed to be rated together as one disability under DC 6027-6080 due to their overlapping symptoms and resulting disability, characterized as bilateral corneal scars to include right eye traumatic cataract, and granted an increased 10 percent rating for such disability effective August 2, 2018 (i.e., the date of a VA eye examination). Because that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). As outlined above, the record reflects that there are outstanding treatment records not currently associated with the claims file that may be pertinent to this claim, including VA treatment records and SSA records. On remand, all outstanding treatment records should be obtained and associated with the claims file. 4. Entitlement to a TDIU rating. Because a decision on the remanded issues could significantly impact a decision on the TDIU rating issue, the issues are inextricably intertwined. A remand of the TDIU claim is required. See Harris v. Derwinski, 1 Vet. App. 181 (1991). The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities at any time during the appeal period. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain all outstanding VA treatment records for the Veteran, including from the Durham VA Health Care System for the period from November 2010 to the present, from the Charleston VA Medical Center for the period from January 2016 to the present, and from the Columbia VA Health Care System for the period from February 2020 to the present. Any negative search result should be noted in the record and communicated to the Veteran. 3. Request and obtain from the SSA all documents pertaining to any applications by the Veteran for SSA disability benefits, including any decisions and/or determinations, and all supporting medical documentation utilized in rendering any decision or determination. Any negative search result should be noted in the record and communicated to the Veteran. 4. After all requested records have been associated with the claims file, obtain an addendum opinion from an appropriate clinician, after review of the electronic claims file, as to the following questions: (a.) Is it at least as likely as not that any headache disability diagnosed at any time during the period of the current claim is related to any incident of that period of military service? The clinician must give specific consideration to all pertinent STRs (including the October 1979 STR documenting an in-service incident wherein an automatic weapon fired and a blank cartridge shot into the Veteran’s face, causing injury to both of his eyes), pertinent post-service treatment records, and the Veteran’s allegations of experiencing headaches during service with continuity of symptomatology since service. (b.) Is it at least as likely as not that any headache disability diagnosed at any time during the period of the current claim was either caused by or aggravated beyond its natural progression (i.e., any increase in severity beyond the natural progression of the condition) by his service-connected psychiatric disability (major depressive disorder with unspecified trauma and stressor related disorder) or any medications taken for such, his service-connected tinnitus, his service-connected eye disability (bilateral eye corneal scars to include right eye traumatic cataract), and/or his service-connected bilateral hearing loss? If the clinician determines that an examination is necessary to respond to the above questions, then the Veteran should be scheduled for such (or a telehealth interview if an in-person examination is not feasible). A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. 5. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claims on appeal for entitlement to service connection for headaches, entitlement to an initial compensable rating for bilateral hearing loss, and entitlement to higher ratings for bilateral eye corneal scars to include right eye traumatic cataract (with consideration of all applicable eye rating criteria during the appeal period) – followed by adjudication of the issue of entitlement to a TDIU rating (in light of the outcome of the other claims on appeal). If any benefit sought on appeal remains denied, in whole or in part, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. B. Yantz, 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.