Citation Nr: 21074855
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 20-22 990
DATE: December 16, 2021

ORDER

Entitlement to a disability rating in excess of 10 percent for tinnitus is denied.

Entitlement to a compensable disability rating for gastroesophageal reflux disease (GERD) is denied.

Entitlement to an effective date earlier than June 30, 2017, for the grant of tinnitus is denied.

Entitlement to an effective date earlier than June 30, 2017, for the grant of gastroesophageal reflux disease (GERD) is denied.

Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) is granted.

FINDINGS OF FACT

1. Throughout the rating period, the Veteran has been in receipt of a rating of 10 percent for tinnitus, which is the maximum schedular rating for that disability, and all manifestations of the tinnitus are adequately considered under his schedular ratings.

2. Throughout the relevant rating period, the Veteran's GERD symptoms included pyrosis and reflux but did not manifest as two or more of the symptoms for the 30 percent rating of less severity such as, persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.

3. There were no formal or informal claims for entitlement to service connection for tinnitus that remained pending and not finally adjudicated prior to June 30, 2017.

4. There were no formal or informal claims for entitlement to service connection for gastroesophageal reflux disease (GERD) that remained pending and not finally adjudicated prior to June 30, 2017.

5. Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) is at least as likely as not related to an in-service injury, event, or disease. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.3, 4.7, 4.14, 4.21, 4.87, Diagnostic Code 6260.

2. The criteria for entitlement to a compensable disability rating for gastroesophageal reflux disease (GERD) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.114, Diagnostic Code 7399-7346.

3. The criteria for entitlement to an effective date earlier than June 30, 2017, for the grant of tinnitus have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.155, 3.160; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.160(c), 3.400, 20.1103.

4. The criteria for entitlement to an effective date earlier than June 30, 2017, for the grant of gastroesophageal reflux disease (GERD) have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.155, 3.160; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.160(c), 3.400, 20.1103.

5. The criteria for entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from March 1970 to April 1990. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 

Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

Increased Rating

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).

1. Entitlement to a disability rating in excess of 10 percent for tinnitus

The Veteran seeks a higher initial rating for tinnitus. The applicable rating period is from June 30, 2017, the effective date for the award of service connection for that disability, through the present. See 38 C.F.R. § 3.400. The Veteran has not presented any particular contentions as to why a higher rating is warranted.

Turning to the evidence of record, in August 2018, the Veteran was afforded a VA examination for hearing loss and tinnitus. The Veteran reported having ringing in his ears for about 30 years. The VA audiological examiner indicated that the Veteran's tinnitus does not impact the ordinary conditions of daily life, including the ability to work.

In October 2020, the Veteran was afforded a VA examination for hearing loss and tinnitus. The Veteran reported that his tinnitus is constant. The Veteran reported that the tinnitus affects his sleep, he has a problem at night falling asleep. The Veteran reported that his tinnitus impacts the ordinary conditions of daily life, including the ability to work. Specifically, the Veteran stated that he has problems at night falling asleep.

The Veteran's tinnitus is rated under 38 C.F.R. § 4.87, Diagnostic Code 6260. Diagnostic Code 6260 provides a maximum schedular rating of 10 percent for tinnitus, whether the ringing is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2.

Thus, the Veteran's tinnitus has been assigned the maximum schedular rating available under 38 C.F.R. § 4.87, Diagnostic Code 6260, throughout the rating period, and any appeal for a higher schedular rating must be denied.

The sleep disturbances the Veteran reported at the October 2020 VA examination are not expressly contemplated under the criteria set forth in Diagnostic Code 6260. However, the Veteran is separately being granted service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD), which is not currently rated but chronic sleep impairment is contemplated at a 30 percent rating. While the Veteran's claim for service connection is discussed below, the Board notes that the Veteran's symptoms manifest as at least at a 30 percent disability rating level because the Veteran's symptoms include depression, anxiety, memory loss, and chronic sleep impairment. 

There is no indication in the record that the sleep impairment caused by the tinnitus is distinguishable from the sleep impairment caused by the service-connected acquired psychiatric disorder such that it constitutes a separate manifestation. As such assigning a rating, to include on an extraschedular basis, for the sleep impairment caused by the service-connected tinnitus would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259 (1994). Therefore, a higher or separate rating is not warranted based on the sleep impairment the Veteran reported at the October 2020 VA examination.

The Board acknowledges the Veteran's contention that he would like all of his exams from the last year redone. The Veteran stated that for a few of the exams he was in and out in 2 minutes. Although not currently on appeal before the Board he mentions the sleep apnea exam being poor. The Veteran also mentioned that when he saw a psychiatrist that they seemed like they did not care. See February 2020 Report of General Information. The Board acknowledges the Veteran's contention that the examination should be redone because they only took 2 minutes. However, the information gathered in the examination appears complete, as the examiner thoroughly considered and discussed the Veteran's reported symptoms and medical records. In addition, the examiner findings are consistent with medical treatment records, and there is no other indication that the examination was inadequate. Finally, the Veteran's statements were vague, and did not specify if the tinnitus examination was inadequate.

Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected tinnitus, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). The Veteran's tinnitus is manifested as ringing. Such symptoms are not exceptional or unusual for tinnitus. See Dorland's Illustrated Medical Dictionary 1930 (32nd ed. 2012) (defining tinnitus as "a noise in the ears, such as ringing, buzzing, roaring, or clicking."). The Veteran will be compensated for chronic sleep impairment through his rating for acquired psychiatric disorder.

The Board therefore finds no basis for awarding a rating in excess of 10 percent for the Veteran's tinnitus at any time during the rating period. As the preponderance of the evidence is against the assignment of a higher initial rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

2. Entitlement to a compensable disability rating for gastroesophageal reflux disease (GERD)

The Veteran seeks a higher initial rating for gastroesophageal reflux disease (GERD). The applicable rating period is from June 30, 2017, the effective date for the award of service connection for that disability, through the present. See 38 C.F.R. § 3.400. The Veteran has not presented any particular contentions as to why a higher rating is warranted.

The Veteran's GERD is rated under 38 C.F.R. § 4.114, Diagnostic Code 7399-7346, which pertains to hiatal hernias and is most closely analogous to the Veteran's unlisted disability of GERD. See 38 C.F.R. § 4.20. Hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Thus, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy.

Under Diagnostic Code 7346, a 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is assigned when there are two or more of the symptoms for the 30 percent rating of less severity.

Turning to the evidence, the Veteran's treatment records reflect that he has received ongoing treatment for his GERD symptoms, that require medication, but there is no indication of any worsening.

In August 2018, the Veteran was afforded a VA examination for esophageal conditions (including GERD, hiatal hernia and other esophageal disorders). The examiner indicated that the Veteran had a diagnosis of gastroesophageal reflux disease (GERD). The Veteran reported the condition began a few years ago and "felt like a burning in his throat and like something was lodged in his throat." The Veteran's treatment plan includes taking continuous medication, Protonix. The examiner noted that the Veteran's symptoms include pyrosis and reflux. The examiner indicated that the CBC with differential platelets were incidental findings less likely related to the Veteran's GERD claim.

As noted above, in order for the Veteran to receive a compensable rating for his GERD disability his symptoms must include at least 2 of the symptoms listed within the 30 percent criteria. Currently, none of the Veteran's symptoms manifest as those listed within the 30 percent criteria. In addition, the examiner noted that the Veteran's symptoms do not impact his ability to work.

Thus, the Veteran's statements, the medical treatment records, and the August 2018 VA examination report reflects that the Veteran's symptoms include pyrosis and reflux, but neither symptom is included within the 30 percent rating.

Under Diagnostic Code 7346, GERD symptoms including pyrosis and reflux, but not of two or more of the symptoms for the 30 percent rating, warrants a non-compensable rating. Accordingly, the Board finds that the criteria for a compensable rating for GERD have not been met at any time during the relevant rating period.

As discussed above, the Board acknowledges the Veteran's contention that all of his examinations for the last year should be redone because they only took 2 minutes. However, the information gathered in the examination appears complete, as the examiner thoroughly considered and discussed the Veteran's reported symptoms and medical records. In addition, the examiner's findings are consistent with medical treatment records, and there is no other indication that the examination was inadequate. Finally, the Veteran's statements were vague and did not specify if the GERD examination was inadequate.

Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected GERD, nor have any other such issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70.

The Board therefore finds that the criteria for a compensable disability rating for GERD have not been met at any time during the rating period. Accordingly, there is no basis for staged rating of the Veteran's GERD pursuant to Hart, 21 Vet. App. at 519. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 49.

Effective Date

3. Entitlement to an effective date earlier than June 30, 2017, for the grant of tinnitus

4. Entitlement to an effective date earlier than June 30, 2017, for the grant of gastroesophageal reflux disease (GERD)

The Veteran seeks an earlier effective date, that was not specified for the grant of service connection for tinnitus and gastroesophageal reflux disease (GERD). 

Initially, the Veteran was awarded service connection for tinnitus and GERD, with an effective date of February 6, 2018. However, in the February 25, 2020 rating decision, the RO awarded the Veteran with an effective date of June 30, 2017 for both the Veteran's tinnitus and GERD claims, because the RO found that clear and unmistakable error was made.

Generally, the effective date of an award of compensation based on an original claim received greater than one year after separation from active service, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

Regulations that were in effect prior to March 24, 2015, required that an informal claim "must identify the benefit sought." See 38 C.F.R. §§ 3.155, 3.160. The regulations also provided that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). The regulations in effect since March 24, 2015, require that claims be submitted on an application form prescribed by the Secretary. They do not allow for informal claims not submitted on such a form. See 38 C.F.R. §§ 3.155, 3.160. The Board will apply the regulations in effect prior to March 24, 2015, to communications received during that period.

Upon careful review of the record, the Board finds that the earliest communication received from the Veteran that could reasonably be construed as a request for a determination of entitlement, or that evidences a belief in entitlement, to service connection for service connection for tinnitus or GERD is the informal intent to file, which was received on June 30, 2017. The Board notes that the Veteran filed subsequent informal intent to file forms, however the June 30, 2017 form was the earliest communication from the Veteran. Therefore, June 30, 2017, the date the informal claim for entitlement to service connection for tinnitus and GERD was received, is the appropriate effective date for the grant of service connection for tinnitus and GERD. See 38 C.F.R. § 3.400.

In summary, an informal claim for entitlement to service connection for tinnitus and GERD was received on June 30, 2017; however, no communication was received from the Veteran prior to June 30, 2017, that reasonably can be interpreted as an informal or formal claim for entitlement to service connection for tinnitus or GERD. Therefore, June 30, 2017, and no earlier, is the appropriate effective date for the grant of service connection for tinnitus and GERD. 38 C.F.R. § 3.400. To the extent the Veteran seeks entitlement to effective dates earlier than those assigned in this decision or previously assigned, the preponderance of the evidence is against the appeal, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 49.

5. Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD)

The Veteran contends that his acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) is related to active service. The Veteran contends that he is still "disturbed by images of autopsies on infants he witnessed" while working in the military. He also contends he feels guilt from not being able to save a girl from drowning. The Veteran stated that he witnessed two of his friends being killed, one in an automobile accident and the other from an aircraft accident (a mechanic was caught in one of the engines). In addition, the Veteran suffered personal losses, as his wife, mother, and brother died in close proximity to each other. 

Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). For cases certified to the Board on or after August 4, 2014, such as this case, the diagnosis of PTSD must be in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. § 4.125(a); Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093 (Aug. 4, 2014) (Applicability Date) (updating 38 C.F.R. § 4.125 to reference the DSM-5).

Resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran has a current acquired psychiatric disability that is related to an in-service event, injury or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

The Veteran's service treatment records reflect that he had nerves, difficulty sleeping, was homesick, and had situational depression. See May 1971 treatment record. In August 1978, the Veteran noted nervous trouble of any sort, and did not know if he had depression or excessive worry. There were performance and conduct issues noted in the Veteran's treatment records including writing bad checks, failing to comply with orders, and unauthorized absences. While most of the Veteran's performance records were "great," the Veteran also had instances where he needed counseling for his behavior. The Veteran's records also had notations of receiving treatment for adjustment disorder, depression, and help with personal problems.

A friend and fellow service member submitted a buddy statement on the Veteran's behalf. The buddy recalled the Veteran as "mellow," fun and outgoing before service. The buddy served with the Veteran, on two occasions, and noted that the Veteran was less outgoing and more argumentative. 

The Veteran's spouse submitted a statement that indicated that the Veteran had anxiety. The Veteran "freaks out" around crowds and cannot have gatherings at his house. The Veteran lashes out easily. The Veteran also has hallucinations, low energy, and low motivation.

The Veteran's friend submitted a statement that indicated that the Veteran is completely a different man since service. 

In August 2018, the Veteran was afforded a VA examination for PTSD. The examiner indicated that the Veteran had a diagnosis of PTSD that manifested as an occupational and social impairment with reduced reliability and productivity. 

In December 2018, VA secured an addendum medical opinion. The examiner opined that the Veteran's diagnosed PTSD was less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. As to the rationale, the examiner stated that, "adjustment disorder with depressed mood in service was a temporary condition related to marital problems at that time. Adjustment disorders by nature resolved when the stressor is lifted." The examiner concluded by stating that the Veteran's current PTSD is less likely as not incurred in or caused by the mental health condition in service.

In May 2020, the Veteran obtained a private medical examination. The examiner indicated that the Veteran was diagnosed with a depressive disorder and unspecified trauma-and stressor-related disorder. The examiner indicated that the Veteran had a diagnosis of PTSD that manifested as an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. 

The examiner opined that the Veteran's mental health issues began in-service and are more likely than not aggravated by his service-connected impairments. As to the rationale, the examiner explained that based on treatment records, and interview presentation, the examiner believes the Veteran's symptoms are consistent with major depression and an unspecified trauma-and stressor-related disorder, both of which began in the service. The examiner stated that the Veteran's symptoms are most consistent with a depressive syndrome versus a temporary adjustment disorder. These depressive symptoms likely impaired the Veteran's ability to cope with an array of life stressors and losses. Finally, the examiner explained that it is not possible to parcel out the relative contribution of one stressor/factor on the development or maintenance of his mental health condition. Thus, the examiner opined that his mental health disorders began in service. The examiner supported her medical opinion with medical research which she cited throughout her opinion.

The Board acknowledges the Veteran's contention that he would like all of his exams from the last year redone, as they were short, and when he saw a psychiatrist that they seemed like they did not care. See February 2020 Report of General Information. As the Board is granting this claim, the adequacy of the service connection examination is moot for determining service connection.

The Board finds that after weighing the evidence, that the private medical opinion is the most probative evidence because it is based on an accurate medical history and provided an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that the December 2018 VA medical opinion, only focused on the time period where the Veteran lost family members and did not address the other time periods. Specifically, that there were notations within the Veteran's service treatment records about depression and anxiety prior to the Veteran losing family members. The Board is persuaded by the private examiner's medical opinion that it is not possible to parcel out the relative contribution of one stressor/factor on the development or maintenance of the Veteran's mental health condition. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's mental disability is as likely as not related to the Veteran's active service.

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In summary, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current mental disabilities are related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder to include post-traumatic stress disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Quist Associate 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.