Citation Nr: 21067830 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 15-38 770 DATE: November 5, 2021 ORDER As new and material evidence has not been received to reopen the claim of entitlement to service connection for genital warts, the claim is denied. An initial disability rating in excess of 10 percent for tinnitus is denied. A compensable disability rating for residuals, status post-surgery of perforated left eardrum, is denied. REMANDED Entitlement to service connection for bilateral eye disorder is remanded. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI) is remanded. Entitlement to an initial disability rating in excess of 20 percent for lumbosacral strain is remanded. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the right shoulder and right hip is remanded. Entitlement to an initial compensable disability rating for right knee strain is remanded. Entitlement to an initial compensable disability rating for headaches is remanded. Entitlement to an initial compensable disability rating for peripheral vestibular disorder (PVD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed March 2008 rating decision denied service connection for genital warts. Evidence received since the March 2008 rating decision is not new and material, as it does not relate to an unestablished fact necessary to reopen the claim. 2. The Veteran's tinnitus is evaluated at the maximum schedular rating available for that disorder. 3. The Veteran's residuals, status post-surgery of perforated left eardrum, are evaluated at the maximum schedular rating available for that disorder. CONCLUSIONS OF LAW 1. The March 2008 rating decision which denied service connection for genital warts is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received since the March 2008 rating decision and the requirements to reopen the claim of entitlement to service connection for genital warts are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for an initial disability rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260. 4. The criteria for a compensable disability rating for residuals, status post-surgery of perforated left eardrum, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6211. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 2001 to May 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2014 and March 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a travel Board hearing in July 2019. This hearing was rescheduled for October 2021 due to a scheduling conflict with the Veteran's representative. The Veteran failed to appear for his scheduled hearing and has not provided good cause for his failure to appear. Therefore, the Board finds that the Veteran's hearing request has been withdrawn and the appellate review may proceed. 38 C.F.R. § 20.704(d). In an August 2015 rating decision, the RO combined the ratings as to the Veteran's service-connected right shoulder and right hip degenerative arthritis into one 10 percent initial disability rating effective May 30, 2013. As the rating period regarding the Veteran's right shoulder and right hip degenerative arthritis is not the maximum allowable, the issue remains on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). Claim to Reopen In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. The claim to reopen the claim of entitlement to service connection for genital warts A March 2008 rating decision denied service connection for genital warts based on a finding that the evidence of record at the time failed to show treatment for or a diagnosis of a genital disability. The Veteran did not appeal the decision, and it became final. In May 2013, the Veteran requested that his claim be reopened, and in April 2014, the Regional Office (RO) denied the claim. As such, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim of entitlement to service connection for genital warts. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board finds that new and material evidence has not been presented to reopen the claim. Evidence added to the claims file subsequent to the March 2008 rating decision includes post-service VA and private treatment records and a February 2014 VA examination report. This evidence is new since it is neither cumulative nor redundant of the evidence that was of record in March 2008. However, this evidence is not material because it does not raise a reasonable possibility of substantiating the Veteran's claim. Specifically, post-service VA and private treatment records are silent for treatment for or a diagnosis of a genital disability. Further, the February 2014 VA examination report reflects a normal male reproductive system. While the Veteran indicated during the examination that he was treated for genital warts during service and that this disorder went away after treatment with prescription medication, the examiner found no evidence of any genital wart residuals upon examination. In conclusion, the Board finds that new and material evidence has not been submitted, and the petition to reopen the claim of entitlement to service connection for genital warts must be denied. Higher Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial disability rating in excess of 10 percent for tinnitus The Veteran's service-connected tinnitus is currently rated as 10 percent disabling under Diagnostic Code 6260. 38 C.F.R. § 4.87, Schedule of ratings ear. This diagnostic code allows for a single 10 percent rating, the maximum schedular rating available, for tinnitus regardless of whether it is unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Based on a review of the relevant evidence, the Board finds that the Veteran's tinnitus does not present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. During the February 2014 VA examination, the Veteran indicated that he experiences constant tinnitus. Post-service treatment records reflect similar reports. The only symptom of his tinnitus is a constant ringing in his ears that has remained stable over time, which is contemplated by the rating criteria. Here, the Veteran has not described an impairment specific to his tinnitus that would present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. As the rating schedule is adequate to evaluate the Veteran's tinnitus, the Board finds that referral for consideration of an extraschedular rating is not warranted. See 38 C.F.R. § 3.321(b). As the maximum schedular rating under Diagnostic Code 6260 has been reached, and there is no legal basis upon which to award a higher schedular evaluation, the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial disability rating in excess of 10 percent for his service-connected tinnitus. As such, the claim must be denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a compensable disability rating for residuals, status post-surgery of perforated left eardrum The Veteran's residuals, status post-surgery of perforated left eardrum, are currently rated as noncompensable (zero percent) under Diagnostic Code 6211, which is the only schedular rating available for this disability. 38 C.F.R. § 4.87, Schedule of ratings ear. Based on a review of the relevant evidence, the Board finds that the Veteran's residuals from perforated left eardrum surgery do not present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. During the February 2014 VA examination, the Veteran indicated that he does not experience ear infections or any other residuals following his perforated left eardrum surgery. Post-service treatment records are also silent for any perforated left eardrum surgery residuals. Here, the Veteran has not described an impairment specific to any residuals following his perforated left eardrum surgery that would present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. As the rating schedule is adequate to evaluate the Veteran's residuals following perforated left eardrum surgery, the Board finds that referral for consideration of an extraschedular rating is not warranted. See 38 C.F.R. § 3.321(b). As the maximum schedular rating under Diagnostic Code 6211 has been reached, and there is no legal basis upon which to award a higher schedular evaluation, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable disability rating for his service-connected residuals, status post-surgery of perforated left eardrum. As such, the claim must be denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for bilateral eye disorder is remanded. The Veteran's post-service VA treatment records indicate that he sees a private glaucoma specialist, Dr. E. M. at Ophthalmic Associates, on a regular basis for pigment dispersion syndrome, as well as for possible glaucoma. These records are not in the Veteran's claims file, nor does it appear that VA attempted to obtain them. They appear relevant to the Veteran's claim as they may include further information pertaining to any currently diagnosed eye disabilities, as well as potential medical statements regarding the nature and etiology of any diagnosed eye disabilities. VA has a duty to seek these records. 38 U.S.C. § 5103A(b)(1). 2. Entitlement to an initial disability rating in excess of 70 percent for PTSD with TBI is remanded. 3. Entitlement to an initial disability rating in excess of 20 percent for lumbosacral strain is remanded. 4. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the right shoulder and right hip is remanded. 5. Entitlement to an initial compensable disability rating for right knee strain is remanded. 6. Entitlement to an initial compensable disability rating for headaches is remanded. 7. Entitlement to an initial compensable disability rating for PVD is remanded. Post-service VA treatment records from 2015 and 2016 reflect that the Veteran reported a worsening in his PTSD, lumbar spine, right shoulder, right hip, right knee, headache, and PVD symptoms since his last VA examinations in February 2014. As to his PTSD, the Veteran indicated that he experiences increased irritability, depression, anger, and feelings of hopelessness. He also reported an increase in pain as to his lumbar spine, right shoulder, right hip, and right knee disabilities that affects his physical activities and range of motion. Further, he stated that his headache pain has increased in severity and that he experiences increased feelings of vertigo which have resulted in 3 falls within one month. VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when the Veteran asserts or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Here, the Veteran has alleged a worsening in the severity of his service-connected PTSD, lumbare spine, right shoulder, right hip, right knee, headache, and PVD disabilities, while his VA treatment records have not been updated and associated with his claims file since March 2016. Thus, to ensure that the record includes sufficient medical evidence to properly evaluate these disabilities under consideration, the Board finds that a remand is warranted for new VA examinations and to ensure that updated VA treatment records are associated with the Veteran's claims file. See 38 C.F.R. §§ 5103A, 3.159; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 8. Entitlement to a TDIU is remanded. The Board notes that the Veteran's claim for a TDIU is inextricably intertwined with the foregoing issues, and so disposition of the issue is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. With any necessary identification of sources and authorization by the Veteran, request all VA and private treatment records for the Veteran not already associated with the file, to specifically include treatment records from 2014 to the present from Dr. E. M. at Ophthalmic Associates, referenced in the Veteran's most recent Anchorage VA treatment records, as well as post-service VA treatment records from 2016 to the present. Copies of any outstanding VA and private treatment records should be added to the Veteran's electronic claims file. 2. Thereafter, schedule the Veteran for a VA examination with a psychiatrist or a psychologist to determine the nature and current severity of his service-connected PTSD with TBI. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. Based on review of the appropriate records and any necessary testing, the examiner should identify the symptoms and occupational and social impairment the Veteran has manifested since the February 2014 VA PTSD examination that are attributable to the Veteran's service-connected PTSD with TBI. A detailed rationale for all opinions expressed should be provided. The examiner should address how the Veteran's PTSD impacts his activities of daily living, including his ability to obtain and maintain employment. 3. Schedule the Veteran for VA examinations by examiners with appropriate expertise to determine the nature and current severity of his service-connected lumbar spine, right shoulder, right hip, and right knee disabilities. The Veteran's electronic claims file must be accessible for review by the VA examiners in conjunction with the examinations. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiners should be performed and the results reported in detail. In particular, the examiners must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If possible, provide these tests for the opposite joint. If the examiners are unable to conduct any aspect of the required testing or conclude that it is not necessary, e.g., non-weight-bearing, the examiners should clearly explain why that is the case. A detailed rationale for all opinions expressed should be provided. Following the review of the claims file and examination of the Veteran, the examiners are then requested to respond to the following: a. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. b. Indicate whether the examination is taking place during a period of flare-up, and if it is not, the examiner should ask the Veteran to describe the flare-ups, including: frequency, duration, severity, and functional impairment. c. If the Veteran is not being observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran's lay descriptions of repeated use or flares' severity, frequency, duration, and/or functional loss manifestations. If the examiner cannot estimate the degrees of additional range of motion during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner. 4. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and current severity of his service-connected headaches. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. A detailed rationale for all opinions expressed should be provided. 5. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and current severity of his service-connected PVD. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. A detailed rationale for all opinions expressed should be provided. (Continued on the next page) 6. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran's claims, to include the intertwined issue of entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.