Citation Nr: 21012137 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-48 475 DATE: March 3, 2021 ORDER Service connection for an acquired psychiatric disorder, to include an unspecified trauma and stressor-related disorder with depressive disorder, from and earlier effective date of April 22, 2015, is granted. From January 19, 2017, an increased rating for tinnitus of greater than 10 percent disabling, as a matter of law, is denied. REMANDED Service connection for vertigo/dizziness, including as secondary to service-connected hearing loss and tinnitus, is remanded. FINDINGS OF FACT 1. The Veteran’s formal claim for service connection for an acquired psychiatric disorder was filed on April 22, 2015. 2. The October 26, 2020 claim for depression and anxiety was not a new claim for service connection for an acquired psychiatric disorder because the April 22, 2015 claim for service connection was still pending on appeal to the Board. 3. For the entire rating period on appeal, the Veteran has been assigned the maximum 10 percent schedular disability rating for tinnitus available. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of April 22, 2015, for an acquired psychiatric disorder, to include an unspecified trauma and stressor-related disorder with depressive disorder, have been met. 38 U.S.C. § 5110; 38 C.F.R. § 38 C.F.R. § 3.400. 2. There is no legal basis for the assignment of a disability rating in excess of 10 percent for tinnitus for any period on appeal. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.159, 3.326, 4.1, 4.2, 4.10, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from March 1963 to September 1966. The instant case is on appeal from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions that, in pertinent part, denied service connection for an acquired psychiatric disorder, denied service connection for vertigo/dizziness, and denied an increased rating for tinnitus of greater than 10 percent disabling. The instant case has been before the Board of Veterans’ Appeals (Board) previously, which resulted in an October 2019 decision that, in pertinent part, denied service connection for an acquired psychiatric disorder, denied service connection for vertigo/dizziness, and dismissed the increased rating claim for tinnitus. The Veteran appealed the October 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Joint Motion for Partial Remand, the Court vacated and remanded the claims for service connection for acquired psychiatric disorder and vertigo/dizziness and the increased rating claim for tinnitus, for the reasons discussed below. The Veteran previously testified at a Board hearing in June 2019. The hearing transcript has been associated with the claims file. Effective Date Legal Authority Except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the latter. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As to what constitutes a claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” means a communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015. Id. at 57,686. 1. Service Connection for an Acquired Psychiatric Disorder from an Earlier Effective Date As stated previously, the issue originally before the Board and the Court was that of service connection for an acquired psychiatric disorder. During the pendency of the appeal, in December 2020, the RO granted service connection for an acquired psychiatric disorder and established an effective date of October 26, 2020, which is when a separate claim form was filed. The Veteran seeks to have an earlier effective date of April 22, 2015, which is the date of the original claim for service connection for an acquired psychiatric disorder. Because the effective date assigned does not cover the entire period on appeal from the original claim in April 2015, the Board finds that the earlier effective date of April 22, 2015 is warranted. The Board finds that the earlier effective date question is properly before the Board as a downstream element of the claim for service connection for an acquired psychiatric disorder that was already on appeal before the Board and the Court. The December 2020 rating decision served as a partial grant of the service connection claim as it granted the benefit sought (service connection), but not for the entire period that the issue was on appeal (from April 22, 2015). The December 2020 rating decision served as a full grant of the substantive issue of service connection itself; however, the effective date given by the RO was not the date of the service connection claim that was already on appeal to the Board. Because the earliest effective date was not chosen, the Board still has jurisdiction generally over the related downstream element of the effective date for the service connection for an acquired psychiatric disorder. The Board finds that, although the Veteran filed a claim for depression and anxiety in October 2020, that was not a new service connection claim at the time that it was filed because the issue of service connection for an acquired psychiatric disorder was already on appeal before the Board; therefore, the RO’s decision granting service connection for an acquired psychiatric disorder was really a grant of the service connection claim on appeal to the Board. Because of this, the effective date should have been April 22, 2015—the date of the service connection claim that was on appeal to the Board. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The earlier effective date is supported by the record, which results in a full grant of service connection for an acquired psychiatric disorder. Because the earlier effective date question is being granted to the earliest possible date of claim, there is no longer an issue of service connection for an acquired psychiatric disorder on appeal at this time. Disability Ratings Legal Authority Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of ratings with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If an increase in disability occurred within one-year prior to the claim for increase, the increase is effective as of the date the increase was factually ascertainable. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (holding “that an increase in a veteran’s service-connected disability must have occurred during the one year prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date”). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate it under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. 2. Rating Tinnitus For the entire rating period on appeal, the Veteran has been in receipt of the maximum schedular 10 percent rating for tinnitus. The Veteran requests a higher rating than 10 percent, notwithstanding no such higher shedular rating exists. See September 2017 VA Form 9 (stating that the ringing in the ears is constant and driving him crazy); see also October 2020 Court Joint Motion for Partial Remand (seeking to reinstate the claim for tinnitus that had been dismissed based on representations made prior to the hearing). Tinnitus is rated under Diagnostic 6260, which provides a 10 percent maximum disability rating for recurrent tinnitus. 38 C.F.R. § 4.87. Note (2) further explains that the Board must assign only a single rating for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. The United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed VA’s long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Citing United States Supreme Court precedent, the Federal Circuit explained in Smith that an agency’s interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Finding that there was a lack of evidence in the record suggesting that VA’s interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with regulations, the Federal Circuit concluded that the Court had erred in not deferring to VA’s interpretation. The regulations preclude a schedular rating in excess of a single 10 percent rating under Diagnostic Code 6260 for tinnitus; therefore, the Veteran’s appeal for a disability rating greater than 10 percent for tinnitus must be denied as a matter of law. 38 C.F.R. § 4.87. As disposition of this issue is based on the law and not the facts of the case, the issue must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Extraschedular Referral Denied The Board has considered whether referral for an extraschedular rating would have been warranted for the tinnitus disability under 38 C.F.R. § 3.321(b)(1). The possibility of extraschedular referral has been raised by the former representative, who stated that reconsideration of the tinnitus rating should include extraschedular consideration. The memorandum from the former representative noted that the Veteran testified at the Board hearing that his tinnitus was so severe that he was unable to get his bearings, sleep, or understand what people are saying to him and that words are being drowned out due to the ringing in his ears. See October 2020 Correspondence. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s 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 extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). With respect to the first prong of Thun, the evidence in this instant appeal does not establish such an exceptional disability picture as to render the schedular rating criteria inadequate. The Rating Schedule clearly addresses all degrees of recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2). All the tinnitus symptomatology and functional impairment are contemplated by the Rating Schedule. The memorandum from the former representative suggests extraschedular consideration is necessary but does not state why the Rating Schedule is inadequate. The described difficulty understanding what people are saying to Veteran, and that words are being drowned out due to the ringing in the ears, is precisely the impairment that ringing in the ears (tinnitus) causes. As the Rating Schedule contemplates all aspects of the Veteran’s tinnitus and requires a single 10 percent rating for such disability, the Board finds that referral for extraschedular consideration is not warranted for the service-connected tinnitus, as no exceptional factors associated with tinnitus have been identified. With regard to the assertion that tinnitus may cause the Veteran to be unable to get his bearings and may interfere with sleep, the remedy to compensate for such symptoms, if in fact those symptoms are being caused by the tinnitus, is to file a claim for secondary service connection under 38 C.F.R. § 3.310, present evidence of an actual diagnosed disability manifesting in disorientation and sleep interference, and present competent evidence that relates these diagnosed disabilities to the tinnitus. The VA rating schedule is fully capable of rating these distinct and separate disorders, that are not ratable as tinnitus, if and when secondary service connection is established for such disorders 38 C.F.R. § 3.310. REASONS FOR REMAND 3. Service Connection for Vertigo/Dizziness The Court’s October 2020 Joint Motion for Partial Remand vacated and remanded the claim for service connection for vertigo/dizziness based on it being inextricably intertwined with the Board’s remand for a rating for hearing loss. The hearing loss appeal has separately returned to the Board and been decided, see October 2020 Board Decision. Additional information is needed to decide the service connection claim for vertigo/dizziness. The Veteran testified at the June 2019 Board hearing that his vertigo/dizziness is due to noise exposure and stated that he was told that the vertigo/dizziness would never get better because his “ears can’t get no better…That’s what they told me.” These facts raise theories of direct service connection (as due to in-service noise exposure) and secondary service connection under 38 C.F.R. § 3.310 (as due to either tinnitus or hearing loss) that have not been explored. A VA examination and opinion are necessary in order to be able to adjudicate the claim. The matter is REMANDED for the following actions: Arrange a VA examination to address the question of etiology of the Veteran’s vertigo/dizziness. The VA examiner should provide the following opinions: (a.) Is the Veteran’s vertigo/dizziness at least as likely as not due to the in-service acoustic trauma? (b.) Is the Veteran’s vertigo/dizziness at least as likely as not caused by the service-connected bilateral sensorineural hearing loss and/or tinnitus? (c.) Is the Veteran’s vertigo/dizziness at least as likely as not aggravated by (worsened in severity beyond a normal progression) the service-connected bilateral sensorineural haring loss and/or tinnitus? The VA examiner is to take as established that the Veteran had significant noise exposure, to include at a minimum being present around lots of aircraft without hearing protection. In providing a rationale, the VA examiner is to address the Veteran’s statement that a medical professional told him that his vertigo/dizziness would not improve because his ears would not improve. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.