Citation Nr: 21006374 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 20-13 082 DATE: February 4, 2021 ORDER Entitlement to a disability rating in excess of 10 percent, to include on an extraschedular basis, for service-connected tinnitus is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for mild thoracic scoliosis and arthritis with multi-level lumbar spondylosis is remanded. Entitlement to service connection for degenerative disc disease of the cervical spine is remanded. FINDING OF FACT The Veteran’s tinnitus is not shown to have been so exceptional or unusual as to render impractical the application of the regular schedular standards for rating the disability. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for service-connected tinnitus, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.321, 4.85, DC 6260 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from March 1989 to March 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), or Agency of Original Jurisdiction (AOJ). 1. Entitlement to a disability rating in excess of 10 percent for service-connected tinnitus. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126–27 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). VA’s rating schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under those circumstances, where the schedular evaluations are found to be inadequate, a veteran may be awarded a rating higher than that encompassed by the schedular criteria. 38 C.F.R. § 3.321(b)(1). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. Id.; see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993); 38 C.F.R. § 3.321(b)(1). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The Veteran initially became service-connected for tinnitus in a June 2018 rating decision; his condition was evaluated as 10 percent disabling, effective November 13, 2017. Under DC 6260, 10 percent is the maximum schedular rating available for tinnitus. 38 C.F.R. § 4.87. Nonetheless, the Veteran contends he is entitled to extraschedular consideration for his tinnitus. His description of constant, high-pitched ringing has been taken into consideration by the rating criteria because ringing of the ears is the definition of tinnitus, as shown by Dorland’s Illustrated Medical Dictionary, which defines tinnitus as a noise in the ears, such as ringing, buzzing, roaring, or clicking. 1930 (32nd ed. 2012). The Board finds the Veteran’s tinnitus is contemplated, and may be properly evaluated, by the schedular criteria. See Long v. Wilkie, No. 16-1537 (Vet. App., Dec. 30, 2020); Doucette v. Shulkin, 28 Vet. App. 366 (2017). Consequently, the Board concludes that referral of this case for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 114-15 (2008). The Board acknowledges the Veteran’s assertion that his tinnitus is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible evidence in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the lay or medical evidence demonstrates that the criteria for an extraschedular rating have been met. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. Accordingly, the rating assigned for the Veteran’s tinnitus accurately reflects the degree of his service-connected tinnitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, DC 6260. Under the current facts, the Veteran has not asserted, and the evidence of record has not suggested or raised, any such effect or impact of his tinnitus that creates such an exceptional circumstance to render the schedular rating criteria inadequate. The Veteran’s claim for a disability rating in excess of 10 percent for service-connected tinnitus, therefore, is denied. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. As an initial matter, the evidence reflects that the Veteran has been given multiple psychiatric diagnoses, including PTSD. As such, the matter on appeal has been broadly characterized as an acquired psychiatric disorder. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009) (indicating that a veteran’s claim for service connection for psychiatric symptoms should not be limited to consideration of a specific diagnosis where the pleadings and evidence suggest a claim of broader scope). The Veteran contends that prior to his military service, he had a “normal” life. He did not drink or use drugs, and he had the typical high school experience. However, he lists multiple in-service events and suggests that these incidents caused him to develop a mental health condition. On one occasion, his commanding officer grabbed him by the neck; on several other occasions during service, he was assaulted by fellow servicemembers as well as civilians. CAPRI VA treatment records clearly depict that the Veteran has a current acquired psychiatric disorder. Indeed, these records include diagnoses for both PTSD as well as depressive disorder. However, the file does not contain an etiology opinion as it pertains to the Veteran’s acquired psychiatric disorder linking it to his active duty service. The Board will therefore remand to seek a nexus opinion. Moreover, the Veteran has not provided a stressor statement specifically alleging when these events occurred that would permit corroboration. On remand, the Board asks that the AOJ provide the Veteran with a VA Form 21-0781. 2. Entitlement to service connection for mild thoracic scoliosis and arthritis with multi-level lumbar spondylosis is remanded. 3. Entitlement to service connection for degenerative disc disease of the cervical spine is remanded. The record reflects that the Veteran received imaging in March 2017 which revealed mild thoracic scoliosis and arthritic changes of the thoracic spine, mild multi-level lumbar spondylosis, degenerative changes of the cervical spine at the C5-C6 level, moderate intervertebral disc height loss, and mild anterolateral bone spur formation at C5-C6. The Veteran has not articulated with any specificity an in-service event that may have caused his neck and/or back condition, but he did cite to numerous assaults during service that could plausibly have injured these body parts. The Board acknowledges though that to date, VA has been unable to locate the Veteran’s service treatment records. In an effort to afford due process to the Veteran, the AOJ should seek an etiology opinion that determines whether it is at least as likely as not that any in-service assaults caused his present-day back and/or neck conditions. The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records from October 2019 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers that have treated him for an acquired psychiatric disorder and/or his neck and back conditions. Thereafter, obtain and associate with the claims folder any private treatment records identified. 3. The AOJ shall provide the Veteran with a VA Form 21-0781 Statement in Support of Claim for Service Connection for PTSD. The AOJ shall thereafter attempt to corroborate the stressors listed by the Veteran. 4. Then, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his acquired psychiatric disorder or disorders. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder or disorders occurred in or is otherwise etiologically related to the Veteran’s military service, to include being assaulted by his commanding officer, his fellow servicemembers, and/or any civilians. The examiner should consider the following: • the Veteran’s CAPRI VA treatment records, including diagnoses for PTSD, depressive disorder, and anxiety; • the Veteran’s December 2020 lay statement; and • the lay statement provided by the Veteran’s ex-wife in December 2020. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. The Veteran should also be afforded appropriate VA examinations in order to determine the current nature and etiologies of his back and neck conditions. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such back and/or neck condition occurred in or is otherwise etiologically related to the Veteran’s military service, to include being assaulted by his commanding officer, his fellow servicemembers, and/or any civilians. The examiner should consider the Veteran’s CAPRI VA treatment records – specifically the March 2017 imaging report – documenting his diagnoses. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. A. Rocktashel Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria A. Banis, 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.