Citation Nr: 21064598 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-58 850 DATE: October 20, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for tinnitus, to include on an extra-schedular basis, is denied. REMANDED Entitlement to service connection for a heart disability is remanded. FINDINGS OF FACT The Veteran has the maximum permissible schedular rating for tinnitus; referral of this claim for extra-schedular consideration is not warranted because his claimed symptoms of headaches and sleep impairment are already adequately compensated by the ratings he additionally has for his service-connected tension headaches, sleep apnea, and posttraumatic stress disorder (PTSD) and generalized anxiety; and his symptoms owing to his tinnitus are not so exceptional or unusual as to render impractical application of the regular Rating Schedule standards due to such related factors as marked interference with employment meaning above and beyond what is contemplated by the schedular rating for this disability, or frequent periods of hospitalization. CONCLUSION OF LAW The criteria are not met for a rating higher than 10 percent for the tinnitus, including on an extra-schedular basis. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.87, Diagnostic Code (DC) 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1980 to October 1987 and from March 1988 to October 1989. In May 2019, the Board denied these claims, and, in response, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In a March 2021 Memorandum Decision, the Court vacated (meaning set aside) the Board's decision denying these claims and remanded them back to the Board for readjudication and/or further development. The Veteran did not challenge the Board's other denials in the May 2019 decision, so the Court concluded those other claims were abandoned and accordingly dismissed them. Entitlement to a rating higher than 10 percent for tinnitus The Veteran's tinnitus is rated as 10-percent disabling under the schedular rating criteria. There is no higher schedular rating for tinnitus. 38 C.F.R. § 4.87, DC 6260, Note (2); see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). That notwithstanding, the Court's March 2021 Memorandum Decision determined the Board had not provided adequate reasons and bases for why an increased rating nevertheless was not warranted. The Veteran has described having tinnitus (i.e., ringing in his ears) that wakes him from his sleep two to three times a week. See November 2016 Disability Benefits Questionnaire (DBQ). He also claims this ringing in his ears causes headaches. See 2016 Notice of Disagreement (NOD). According to 38 C.F.R. § 3.321(b)(1), an extra-schedular rating is warranted when the regular schedular standards are impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111(2008), affd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). As will be discussed, however, the Board finds that an extra-schedular rating is not warranted for the Veteran's tinnitus. Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a Veteran is competent to report symptoms that require only personal knowledge, not medical expertise, as they come to him through his senses). Because tinnitus is "subjective," its existence is generally determined by whether the claimant claims to experience it. Indeed, for VA compensation purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Acknowledging this, it stands to reason tinnitus may have some effect on sleep to some degree. But the Board finds that the 10 percent rating for the Veteran's tinnitus adequately compensates him for all his associated symptoms and consequent functional impairment. Service connection and the 10 percent schedular rating for the Veteran's tinnitus has been in effect since March 25, 2016. And, notably, he also is in receipt of service connection for sleep apnea effective from March 1, 2018, for PTSD and generalized anxiety also effective from March 1, 2018, and tension headaches effective from September 11, 2019. Sleep Disturbances from March 1, 2018 Any complaints of sleep disturbances due to tinnitus are adequately compensated in his 50 percent rating for sleep apnea under DC 6847, and in his 70 percent rating for PTSD with anxiety under DC 9411. The ratings for sleep apnea can reasonably be expected to include sleep disturbances (e.g., waking up); this is evident because a 30 percent rating is warranted for daytime hypersomnolence, which would be caused by night-time sleep disturbances. Sleep disturbances are also encompassed under his rating for PTSD and anxiety. Under 38C.F.R. §4.130, the Veteran's service-connected psychiatric disorder is rated on the basis of a General Formula for Mental Disorders which provides that chronic sleep impairment is considered an example of a symptom which may warrant a 30 percent rating for impairment with occasional decrease in work efficiency, and intermittent periods of inability to perform occupational tasks. As chronic sleep impairment would be an example of something which would be adequately compensated under a 30 percent rating, it would definitely be adequately compensated for in the Veteran's higher 70 percent rating under DC 9411 for more serious symptoms. 38 C.F.R. § 4.14, Avoidance of Pyramiding, prohibits "the evaluation of the same manifestation under different diagnoses." Any sleep disturbance (e.g., waking up at night, or difficulty falling asleep) is already adequately compensated under his ratings for sleep apnea and PTSD with anxiety. Thus, referral for extra-schedular consideration as to whether his tinnitus should be rated based on sleep disturbances is not warranted as of March 1, 2018, the date of service connection for sleep apnea and PTSD with anxiety. Headaches from September 11, 2019 Likewise, any headaches due to tinnitus are adequately compensated in his 30 percent rating for headaches under DC 8100. An additional rating would constitute impermissible pyramiding and be in violation of 38 C.F.R. § 4.14. Prior to March 1, 2018 and September 11, 2019 Although an extra-schedular rating is not warranted while the Veteran is in receipt of service connection for sleep apnea, PTSD with anxiety, and tension headaches, the Board must also consider whether referral is warranted for the time period prior to the effective dates of service connection for those disabilities. The Board finds that it is not. The Board acknowledges the Veteran's statement with regard to how VA calculates combined ratings and that "[i]f the ringing wakes me up at night or gives me headaches why would it only be 1.8%". (See 2017 Notice of Disagreement) However, the evidence as a whole does not support that referral for extra-schedular consideration is warranted. The clinical treatment records are unremarkable for tinnitus causing chronic headaches, and a November 2016 Disability Benefits Questionnaire (DBQ) for tinnitus is unremarkable for a complaint of headaches. The Board finds that if he had significant headaches due to tinnitus, or aggravated by tinnitus, he reasonably would have reported it when asked about the impact of his tinnitus. Moreover, when clinically discussing his headaches, the Veteran has attributed them to light and medication. With regard to sleep impairment, he has reported that it is caused by pain, his sleep apnea, and his PTSD. Even assuming that tinnitus wakes him at times, he reported to the November 2016 examiner that it only happens "2-3 times per week". Even if the Board finds it credible that his tinnitus caused sleep impairment and headaches, the evidence does not support that it is as likely as not that the symptoms rise to the level of causing marked interference with employment or necessitated frequent periods of hospitalization, or effects of similar severity. His statement that his tinnitus causes him to wake up 2-3 times a week can reasonably be found to be indicative of mild sleep impairment, as he did not report factors such as that he cannot fall back asleep, that he had missed work, or that he had sought medication for sleep impairment due to tinnitus. Moreover, most of the time, it does not wake him up. In sum, the record does not reflect that his tinnitus has caused marked interference with employment (meaning above and beyond his assigned schedular rating) or necessitated frequent periods of hospitalization, or that it caused effects of similar severity. In its memorandum decision, the Court held that the Board must address whether separate ratings are warranted for sleep disruption and/or headaches. The Board finds that they are not. The evidence does not support that it is as likely as not that the Veteran has a sleep disorder separate and apart from his sleep apnea, or other than a symptom encompassed under his acquired psychiatric diagnoses. In an April 2021 decision, the Board denied the Veteran's claim for service connection for a sleep disorder other than sleep apnea; that decision has not been appealed. With regard to headaches, the evidence does not reflect that a compensable rating would be warranted for any headaches due to tinnitus because the evidence does not support that during the period prior to September 11, 2019, he had migraines with characteristic prostrating attacks averaging one in a two-month period over several months. As noted above, when discussing the impact of his tinnitus with the DBQ examiner, the Veteran did not mention headaches. If he had characteristic prostrating attacks due to tinnitus, it seems entirely reasonable that he would have mentioned it. Moreover, in a December 2019 rating decision, when the RO granted service connection for tension headaches, the RO assigned an effective date of September 11, 2019. The Veteran did not appeal the effective date. The Veteran has asserted that his tinnitus warrants "a full 10% as shown on the VA decision [he] received." VA is directed by law to provide for evaluations based on the combination of ratings for multiple service-connected disabilities by use of the Combined Ratings Table at 38 C.F.R. § 4.25. See 38 U.S.C. § 1157. Combined ratings result from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. 38 C.F.R. § 4.25. Use of the Combined Ratings Table is not governed by mathematical calculation by simply adding together the ratings of all of the Veteran's service-connected disabilities. For these reasons and bases, a rating in excess of 10 percent for tinnitus is not warranted for any period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Entitlement to service connection for a heart disability To comply with the Court's March 2021 Memorandum Decision, the Board is remanding this claim back to the Agency of Original Jurisdiction (AOJ), i.e., local Regional Office (RO) for further development and consideration. The Veteran has advanced two theories of entitlement: (1) that his heart disability is etiologically related to his complaints of chest pain in service; and (2) that his heart disability is related to electromagnetic field (EMF) that he was exposed to during his service while fulfilling his military duties and responsiblities. The Court found that, although a June 2017 DBQ examiner addressed whether the Veteran's current heart disability is related to the EMF, the examiner did not additionally address whether the heart disability is related to the Veteran's complaints of chest pain in service. The Court thus vacated the Board's decision denying this claim and remanded it back to the Board for the Board, in turn, to obtain this needed additional medical comment. The Veteran's service treatment records (STRs) reflect that, in April 1981, he was seen for a complaint of midsternal chest pain; he was assessed with epigastric distress on April 12, 1981 and an EKG strip was noted to have no abnormalities. The next day (April 13, 1981), he was assessed with probable chest well syndrome. In July 1981 and May 1988 Reports of Medical History, he denied pain or pressure in the chest, heart trouble, or palpitation or a pounding heart. However, an August 1987 Report of Medical History reflects that although he denied heart trouble, he reported having, or having had, pain or pressure in the chest; an x-ray for chest pain was negative. An August 1987 STR reflects that he was assessed with chest wall pain/costochondritis. Another August 1987 STR note that he had "noncardiac chest pain. An August 1988 pre-op urology chest x-ray also reflects that the exam was unremarkable except for an old granulomatous disease. An August 1989 Report of Medical History reflects that he reported that he gets shortness of breath and chest pain when running PT (physical training). The corresponding Report of Medical Examination reflects a normal heart upon examination. An August 1989 Medical Evaluation Board (for a thumb disability) record reflects that his heart had a regular rate and rhythm with no murmur noted. Many years post-service, the Veteran was diagnosed with arrhythmia known as sick sinus syndrome which required a pacemaker (see June 2017 private St. Lazarus, Dr. C. Contreras record), and had reported a history of myocardial infarctions. The examiner should consider the above-noted information when rendering an opinion. Accordingly, this remaining claim is REMANDED for the following action: Obtain a supplemental opinion to the June 2017 DBQ regarding the Veteran's claim of entitlement to service connection for a heart disability. The examiner is asked to specifically opine on whether it is as likely as not (50 percent or greater probability) the Veteran's current heart disability (arrhythmias/sick sinus syndrome with pacemaker and history of myocardial infarctions) is related to his complaints of chest pain in service. To assist in making this important determination, the examiner shoulder consider the pertinent evidence of record including: a) the April 12, 1981 STR noting complaints of midsternal chest pain; he was assessed with epigastric distress and noted to have a normal EKG; b) the April 13, 1981 STR noting an assessment of probable chest well syndrome; c) the July 1981, August 1987, May 1988, and August 1989 Reports of Medical History and Reports of Medical Examination; d) the August 1987 STRs which reflect that he was assessed with chest wall pain/costochondritis, and note that he had "noncardiac chest pain; e) an August 1988 pre-op urology chest x-ray which reflects that the exam was unremarkable except for an old granulomatous disease; f) an August 1989 Medical Evaluation Board (for a thumb disability) which reflects that his heart had a regular rate and rhythm with no murmur noted. When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale preferably citing to clinical findings or other evidence in the file supporting conclusions and/or accepted medical authority. If adequate opinion and rationale cannot be provided without actual examination of the Veteran, schedule him for an examination, but this is left to the reviewing clinician's discretion. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.