Citation Nr: 20035396 Decision Date: 05/21/20 Archive Date: 05/21/20 DOCKET NO. 16-54 024 DATE: May 21, 2020 ORDER Entitlement to service connection for diabetes mellitus, claimed as due to Agent Orange exposure, is denied. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities, claimed as due to Agent Orange exposure and/or diabetes mellitus, is denied. Entitlement to service connection for Churg-Strauss syndrome is denied. Entitlement to service connection for esophageal cancer, claimed as due to Agent Orange exposure, is denied. Entitlement to service connection for multiple sclerosis is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for hepatitis C is denied. Entitlement to an increased rating for tinnitus in excess of 10 percent is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to special monthly pension is remanded. FINDINGS OF FACT 1. The Veteran did not have service in Vietnam, Thailand, or Korea, and the preponderance of the evidence is against a finding that he was otherwise exposed to herbicide agents during service. 2. Diabetes mellitus was not shown as chronic in service and did not manifest to a compensable degree within one year of service; continuity of symptomatology is not established; and diabetes mellitus is not otherwise etiologically related to an in-service injury or disease. 3. Peripheral neuropathy is not secondary to a service-connected disability and not otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that Churg-Strauss Syndrome began during active service or is otherwise related to an in-service injury or disease. 5. Esophageal cancer was not shown as chronic in service and did not manifest to a compensable degree within one year of service; continuity of symptomatology is not established; and esophageal cancer is not otherwise etiologically related to an in-service injury or disease. 6. Multiple sclerosis was not shown as chronic in service and did not manifest to a compensable degree within one year of service; continuity of symptomatology is not established; and multiple sclerosis is not otherwise etiologically related to an in-service injury or disease. 7. Headaches were not shown as chronic in service and did not manifest to a compensable degree within one year of service; continuity of symptomatology is not established; and headaches are not otherwise etiologically related to an in-service injury or disease. 8. The Veteran does not have a current disability of hepatitis C. 9. The Veteran has the maximum 10 percent schedular rating allowed for tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy, claimed as due to diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for Churg-Strauss syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for esophageal cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for multiple sclerosis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. There is no legal basis for the assignment of a schedular evaluation higher than the current 10 percent for the Veteran's service-connected tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1965 to December 1967. The Veteran’s prior representative withdrew from representation in September 2019. In March 2020, the Board sent the Veteran a letter asking him whether he wished to appoint a new representative. The Veteran did not appoint a new representative. Accordingly, he has elected to proceed pro se in this appeal. As an initial matter, the Board notes that additional VA treatment records were added to the file since the most recent October 2016 Statement of the Case (SOC) and January 2018 Supplemental Statement of the Case (SSOC). However, the Board finds that these records are essentially duplicative of the evidence of the record for the service connection claims adjudicated in the below decision, and the increased rating claim for tinnitus is being denied as a matter of law. Thus, there is harmless error in proceeding with adjudication of the below claims. Service Connection Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Certain chronic diseases, including diabetes mellitus, malignant tumors, and organic diseases of the nervous system, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. Service connection may be established on a presumptive basis for certain disabilities resulting from exposure to an herbicide agent. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). A Veteran who, during military service, served in the Republic of Vietnam during the Vietnam era (January 1962 to May 1975) is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). See also Procopio v. Wilkie, 913 F.3d. at 1380-81 (2019) (those who served in the 12-nautical-mile territorial sea of the "Republic of Vietnam" are entitled to the presumption of herbicide exposure). The presumptive provisions of 38 U.S.C. § 1116 have been extended to encompass veterans shown to have been otherwise exposed to tactical herbicide agents in service, including on the DMZ in Korea. The Department of Defense (DoD) has determined that herbicide agents (including Agent Orange) were used along the Korean DMZ from September 1, 1967, to August 31, 1971. Veterans assigned to one of the units listed as being at or near the Korean DMZ during that period are also presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iv). Veterans serving in Thailand may also have been exposed to herbicides based on their location and duties. If there is no official documentation of service at a location that results in a presumption of exposure to herbicide agents, such exposure may be established on a facts-found basis. 38 U.S.C. § 1113 (b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Exposure is thus a matter of fact to be determined by the Board. Those diseases associated with herbicide exposure include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus, or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchi, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), ischemic heart disease (to include coronary artery disease), Parkinson's disease, and B cell leukemias. 38 C.F.R. § 3.309(e). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service and has contracted an enumerated disease, the veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for diabetes mellitus, claimed as due to Agent Orange exposure The Veteran contends that service connection is warranted for diabetes mellitus on a presumptive basis as due to Agent Orange exposure. As a threshold matter, the Board finds that the Veteran was not exposed to herbicide agents during service. The Veteran’s DD Form 214 indicates that he did not have any foreign or sea service. Further, there is no evidence indicating that the Veteran traveled to Vietnam, Korea, or Thailand during his active service. Based on the lack of evidence of foreign service or travel to any of the areas in which tactical herbicides were used, the Board finds that the Veteran was not exposed to herbicides during active service. As the Veteran is found not to have been exposed to herbicides during service, presumptive service connection for diabetes mellitus due to herbicide exposure is not warranted. The Veteran has a current diagnosis of diabetes mellitus. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The earliest evidence of a diagnosis of diabetes of record is shown in private medical records dated in October 2010. This is more than 40 years after separation from service. Post-service private medical records attribute the onset of diabetes to steroid medications. VA treatment records reflect a current diagnosis of diabetes mellitus. A June 2016 private treatment record shows a diagnosis of steroid-induced diabetes mellitus. Thus, the records indicate that the most likely etiology of diabetes mellitus is due to medication for a non-service-connected condition. The Board acknowledges that the Veteran has not been afforded a VA examination for diabetes mellitus. However, an examination is not necessary in order to render a decision on this claim. In disability compensation claims, the Secretary must provide an examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; and (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Although the Veteran has a current diagnosis of diabetes, there is no evidence indicating that it is associated with service or a service-connected disability. As such, the elements of McLendon have not been met, and a remand to afford the Veteran an examination is not necessary. See Bardwell v. Shinseki, 24 Vet. App. 36, 39-40 (2010) (finding that the VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service). The Board also acknowledges the Veteran’s assertions that his diabetes is due to service. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any diabetes is related to his military service requires medical expertise that the Veteran has not demonstrated since diabetes can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). For these reasons, the Board finds that service connection for diabetes mellitus is not warranted. The Board finds that there is a preponderance of the evidence against the claim for service connection for diabetes mellitus, to include as due to Agent Orange exposure. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for peripheral neuropathy, upper and lower extremities The Veteran seeks entitlement to service connection for peripheral neuropathy of the upper and lower extremities, claimed as due to diabetes mellitus. As service connection for diabetes mellitus has not been established, secondary service connection for peripheral neuropathy of the upper and lower extremities secondary to diabetes mellitus, type II cannot be established. Secondary service connection cannot be established where the claimed primary disability is not service-connected. 38 C.F.R. § 3.310. Although the criteria for secondary service connection have not been met in this case, direct service connection must be considered. Combee, supra. As the Veteran is found not to have been exposed to herbicides during service, presumptive service connection for peripheral neuropathy due to herbicide exposure is not warranted. The Veteran has a current diagnosis of peripheral neuropathy of the upper and lower extremities. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. There are no competent medical opinions linking peripheral neuropathy of the upper and lower extremities to service. An August 2013 VA treatment record indicates that a physician diagnosed peripheral neuropathy, which may be a sequelae of Churg-Strauss syndrome. The Board acknowledges that the Veteran has not been afforded a VA examination for peripheral neuropathy. However, an examination is not necessary in order to render a decision on this claim. There is no evidence indicating that peripheral neuropathy is associated with service or a service-connected disability. As such, the elements of McLendon have not been met, and a remand to afford the Veteran an examination is not necessary. See Bardwell, supra. The Board also acknowledges the Veteran’s assertions that his peripheral neuropathy is due to service or a service-connected disability. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any neuropathy is related to his military service or a service-connected disability requires medical expertise that the Veteran has not demonstrated since peripheral neuropathy can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). The Board finds that there is a preponderance of the evidence against the claim for service connection for peripheral neuropathy. Accordingly, the claim must be denied For these reasons, the Board finds that service connection for peripheral neuropathy of the upper and lower extremities is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for Churg-Strauss syndrome The Veteran seeks entitlement to service connection for Churg-Strauss syndrome. The record does not include any contentions as to how Churg-Strauss syndrome is related to his active service or a service-connected disability. Service treatment records do not show treatment of Churg-Strauss vasculitis. The post-service private treatment records show current treatment of Churg-Strauss vasculitis, which was diagnosed in 2006. There are no competent medical opinions linking Churg-Strauss vasculitis to any event or incident of active service. The Board acknowledges that the Veteran has not been afforded a VA examination for Churg-Strauss syndrome. However, an examination is not necessary in order to render a decision on this claim. There is no evidence indicating that Churg-Strauss syndrome is associated with service or a service-connected disability. As such, the elements of McLendon have not been met, and a remand to afford the Veteran an examination is not necessary. See Bardwell, supra. As previously noted, the record does not include any contentions as to how Churg-Strauss syndrome is related to active service or a service-connected disability. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, to the extent that the Veteran generally contends that his Churg-Strauss syndrome should be service-connected, although the Veteran is competent to report his symptoms, any opinion regarding whether any Churg-Strauss syndrome is related to his military service requires medical expertise that the Veteran has not demonstrated since Churg-Strauss syndrome can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). For these reasons, the Board finds that service connection for Churg-Strauss syndrome is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for esophageal cancer The Veteran seeks entitlement to service connection for esophageal cancer, to include as due to Agent Orange exposure. As discussed above, the Board has previously made a finding that the Veteran was not exposed to herbicides during service. Accordingly, service connection for esophageal cancer due to Agent Orange exposure is not warranted. Esophageal cancer was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Post-service treatment records indicate that that esophageal cancer was diagnosed in 2012. There are no competent medical opinions linking esophageal cancer to active service. The Board acknowledges that the Veteran has not been afforded a VA examination for esophageal cancer. However, an examination is not necessary in order to render a decision on this claim. There is no evidence indicating that esophageal cancer is associated with service or a service-connected disability. As such, the elements of McLendon have not been met, and a remand to afford the Veteran an examination is not necessary. See Bardwell, supra. The Board also acknowledges the Veteran’s assertions that his esophageal cancer is due to service. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any esophageal cancer is related to his military service requires medical expertise that the Veteran has not demonstrated since cancer can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). For these reasons, the Board finds that service connection for esophageal cancer is not warranted. The Board finds that there is a preponderance of the evidence against the claim for service connection for esophageal cancer, to include as due to Agent Orange. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for multiple sclerosis The Veteran seeks entitlement to service connection for multiple sclerosis. The record does not include any contentions as to how multiple sclerosis is related to his active service or a service-connected disability. Multiple sclerosis was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Initial post-service evidence of a diagnosis of multiple sclerosis was shown in VA treatment records dated in 2013. The evidence does not reflect that multiple sclerosis manifested to a compensable degree within one year of the Veteran’s separation from service. There is no competent medical evidence establishing a nexus between any incident of service and his multiple sclerosis. The record does not contain competent medical evidence of a relationship between his multiple sclerosis and an event or injury in service. The Board acknowledges that the Veteran has not been afforded a VA examination for multiple sclerosis. However, an examination is not necessary in order to render a decision on this claim. There is no evidence indicating that multiple sclerosis is associated with service or a service-connected disability. As such, the elements of McLendon have not been met, and a remand to afford the Veteran an examination is not necessary. See Bardwell, supra. As previously noted, the record does not include any contentions as to how multiple sclerosis is related to active service or a service-connected disability. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, to the extent that the Veteran generally contends that his multiple sclerosis should be service-connected, although the Veteran is competent to report his symptoms, any opinion regarding whether any multiple sclerosis is related to his military service requires medical expertise that the Veteran has not demonstrated since multiple sclerosis can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). For these reasons, the Board finds that service connection for multiple sclerosis is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Entitlement to service connection for headaches The Veteran seeks entitlement to service connection for headaches. The record does not include any contentions as to how headaches are related to his active service or a service-connected disability. Headaches were not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and were not noted in service with attributable continuity of symptomatology. The post-service medical evidence is negative for any complaints, treatment, or diagnoses of headaches. Nevertheless, the Board notes that the Veteran is competent to report a current disability of headaches, as they are a condition observable by a lay person. However, the first post-service report of headaches is in the Veteran’s December 2013 claim for service connection. The evidence does not reflect that multiple sclerosis manifested to a compensable degree within one year of the Veteran’s separation from service. There is no competent medical evidence establishing a nexus between any incident of service and his headaches. The record does not contain competent medical evidence of a relationship between his headaches and an event or injury in service. The Board acknowledges that the Veteran has not been afforded a VA examination for headaches. However, an examination is not necessary in order to render a decision on this claim. There is no evidence indicating that headaches are associated with service or a service-connected disability. As such, the elements of McLendon have not been met, and a remand to afford the Veteran an examination is not necessary. See Bardwell, supra. As previously noted, the record does not include any contentions as to how headaches are related to active service or a service-connected disability. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, to the extent that the Veteran generally contends that his headaches should be service-connected, the Board finds that any lay statements that the Veteran’s headaches had their onset in service or that they have continued since then are not credible since they are inconsistent with the evidence of record. For these reasons, the Board finds that service connection for headaches is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Entitlement to service connection for hepatitis C The Veteran seeks entitlement to service connection for hepatitis C. The Board finds that the medical evidence of record does not reflect the Veteran has a current hepatitis C disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Board notes that the Veteran has not provided any evidence that he currently suffers from this disability. While the medical evidence of record, to include VA treatment and private medical records, shows that the Veteran has a diagnosis of hepatitis B, it does not show any notations, complaints, or treatments for hepatitis C. There are no records showing any complaints or symptoms related to such conditions. The Board acknowledges that the Court has previously held that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim’s adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, however, the record does not reflect the Veteran has had hepatitis C at any time during the pendency of this case, as the Veteran has provided no medical evidence showing such diagnosis or treatment for such a condition. The Board also acknowledges the Veteran’s assertions that he has hepatitis C that is due to service. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether the Veteran has a current hepatitis C disability requires medical expertise that the Veteran has not demonstrated since hepatitis C is a complex medical issue. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Increased Rating Criteria Disability evaluations (ratings) are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until the final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). 8. Entitlement to an increased rating for tinnitus The Veteran seeks a higher rating for tinnitus. In Smith v. Nicholson, the Federal Circuit held that the maximum schedular rating available for tinnitus is 10 percent. Currently, the Veteran's tinnitus is already evaluated as 10 percent disabling. Thus, there is no legal basis upon which to award an increased rating for tinnitus on a schedular basis, and the Veteran's appeal must be denied. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). An extraschedular rating may be provided in exceptional cases. See 38 C.F.R. § 3.321. However, the Board does not find that the Veteran’s tinnitus represents an exceptional or unusual disability pattern. Id. A TDIU has been awarded, which encompasses all employment problems due to service-connected disabilities. The Veteran’s tinnitus has not resulted in hospitalizations. As his tinnitus is not unusual or exceptional, the Board finds referral for an extraschedular rating is not appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. A December 2017 VA mental disorders examination noted that the Veteran’s depressive disorder symptoms included chronic sleep impairment. Thus, the records reflects a possible relationship between the Veteran’s service-connected psychiatric disability and his sleep disability. A medical opinion is necessary to determine whether the service-connected psychiatric disorders causes or aggravates sleep apnea. 2. Entitlement to a compensable rating for bilateral hearing loss Since the issuance of the Statement of the Case (SOC) in January 2018, additional evidence was associated with the Veteran’s claim file. Specifically, a May 2018 VA audiological examination is of record. As the Veteran has not waived initial AOJ consideration of this evidence and initial AOJ consideration has not been completed, the Board must remand the claim. 3. Entitlement to special monthly pension is remanded. The Veteran's claim for entitlement to SMC is inextricably intertwined with the remanded claims. Accordingly, it must be remanded pending the development of the sleep apnea and bilateral hearing loss claims. The matters are REMANDED for the following action: 1. Obtain an advisory opinion regarding the claim for service connection for sleep apnea. The examiner must opine as to whether obstructive sleep apnea is at least as likely as not (1) proximately due to; or (2) aggravated by service-connected depressive disorder. 2. Readjudicate the claims, with consideration of all evidence of record, to specifically include evidence associated with the record after the issuance of the January 2018 SSOC. If the claims are denied, issue an SSOC and allow the applicable time for response. Then, return the case to the Board. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.