Citation Nr: 21012475 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 20-20 243 DATE: March 4, 2021 ORDER An initial disability rating in excess of 10 percent for bilateral hearing loss is denied. An initial disability rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, schizophrenia, and bipolar disorder, is remanded. Entitlement to service connection for hypertension, to include as due to an acquired psychiatric disorder, is remanded. Entitlement to service connection for migraine headaches, to include as due to the Veteran’s service-connected tinnitus, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a neck and back disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. Throughout the rating period on appeal, the weight of the competent and probative evidence shows at worst Level II hearing on the right ear and Level I hearing on the left ear, and does not reflect an exceptional pattern of hearing loss in either ear. 2. The Veteran is in receipt of the maximum schedular rating for tinnitus. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85-4.86, Diagnostic Code (DC) 6100. 2. The criteria for a disability rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.10, 4.87, DC 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to October 1988. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Increased rating 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 percentages are based on the average impairment of earning capacity as a result of 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 the 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 will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. An initial disability rating in excess of 10 percent for bilateral hearing loss. The Veteran contends that he is entitled to a disability rating in excess of 10 percent for bilateral hearing loss, evaluated under DC 6100. Specifically, he contends that he “really can’t hear.” See 4/14/2019 NOD; see also; 4/18/2020 Form 9; 10/8/2020 Appellate Brief, at pages 2 and 3. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. §§ 4.85-4.86. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that Veteran is not entitled to a disability rating in excess of 10 percent for bilateral hearing loss. The Board first observes that the Veteran does not have an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. All applicable tests include valid pure tone and speech discrimination scores. As such, Table VI applies. See 38 C.F.R. §§ 4.85-4.86. After the Veteran filed a claim for hearing loss in August 2017, the February 2019 rating decision on appeal granted service connection and assigned an initial disability rating of 10 percent, effective September 16, 2010. A January 2019 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 50 55 60 55 LEFT 10 40 55 55 60 The right ear had an average of 55 decibels and the left ear had an average of 53 decibels. Speech audiometry revealed speech recognition ability of 76 percent in the right ear, and 80 percent in the left ear. See 1/18/2019 C&P Exam. The Veteran’s right ear pure tone average combines with the right ear speech discrimination to yield no worse than a Roman numeral IV in Table VI. Furthermore, his left ear pure tone average also combines with the left ear speech discrimination for no worse than a Roman numeral IV, per Table VI. See 38C.F.R. § 4.85. A roman numeral IV and Roman numeral IV combine for a 10 percent rating in Table VII. A May 2019 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 55 60 60 60 LEFT 20 40 55 55 60 The right ear had an average of 59 decibels and the left ear had an average of 53 decibels. Speech audiometry revealed speech recognition ability of 92 percent in the right ear, and 92 percent in the left ear. See 5/2/2019 C&P Exam. Throughout the period on appeal using the above reported findings, the Veteran’s right ear pure tone average combines with the right ear speech discrimination to yield no worse than a Roman numeral II in Table VI. Furthermore, his left ear pure tone average also combines with the left ear speech discrimination for no worse than a Roman numeral I, per Table VI. See 38C.F.R. § 4.85. A roman numeral I and Roman numeral II combine for a zero, or non-compensable, rating in Table VII. The Board has considered the Veteran’s contentions of the effects hearing loss has in his daily life and that his hearing loss is worse than the rating reflects. See 4/18/2020 Form 9; see also 10/8/2020 Appellate Brief, at page 3. For example, at the January 2019 VA examination, he reported asking people to report and having higher volume settings for the television. He is competent and credible to report any symptoms of hearing loss, such a difficulty hearing. See Jandreau, 492 F.3d at 1377. Nevertheless, VA’s rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. The Board finds that the competent medical evidence, to include the VA examination testing results, are more probative and outweigh the lay subjective reports of a more severe degree of disability, because they were provided by personnel with specialized training in hearing loss and directly address the rating criteria for the Veteran’s hearing loss. The Board observes that VA’s Schedule for Rating Disabilities has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that “the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”). Accordingly, this appeal for a rating in excess of 10 percent is denied. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against a compensable rating. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107(b). 2. An initial disability rating in excess of 10 percent for tinnitus. The Veteran seeks a higher initial rating for tinnitus, currently rated at 10 percent disabling. See 4/14/2019 NOD. Diagnostic Code (DC) 6260 provides that recurrent tinnitus will be assigned a 10 percent rating. 38 C.F.R. § 4.87. Only a single evaluation will be assigned for recurrent tinnitus, whether it is perceived in one ear, both ears, or the head. Id. at Note (2). As the Veteran is already in receipt of the maximum rating available under DC 6260, a higher rating must be denied as a matter of law. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (concluding that the United States Court of Appeals for Veterans Claims (Court) erred in not deferring to VA’s interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral). The Veteran, through his representative, has described his tinnitus symptoms as ringing in the ears that cause functional impact on his everyday life. Additionally, the Veteran contends that his tinnitus cause migraine headaches and that this claim should be afforded extraschedular consideration. See 10/8/2020 Appellate Brief, at pages 2 and 3. The symptoms of ringing in his ears, along with its functional impact, are fully contemplated by DC 6260, as tinnitus is defined as a noise in the ears, such as ringing, buzzing, roaring, or clicking. See Smith v. Principi, 17 Vet. App. 168 (2003); see also DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1930 (32nd ed. 2012). As tinnitus is specifically listed in VA’s Rating Schedule, the Board finds that analogous diagnostic codes need not be explored. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (“[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy.”). The Board will now address whether referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is warranted, as argued by the Veteran. See 10/8/2020 Appellate Brief, at page 3. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations (or ratings) for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In Morgan v. Wilkie, the Court of Appeals for Veterans Claims (the Court) held that “VA’s duty to maximize benefits requires it first to exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered.” The Court specifically listed secondary service connection as a “powerful alternative” to extraschedular referral. Morgan v. Wilkie, 31 Vet. App. 162, at 164, 167 (2019); see also Long v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2371, at 11. As mentioned above, the Veteran contends that his tinnitus causes migraine headaches. Migraine headaches symptoms are contemplated under DC 8100 and not contemplated by the ratings for tinnitus. The Veteran’s diagnosed migraine headaches disability, to include as due to the service-connected tinnitus, will be fully discussed later in this decision. Therefore, the Board will consider extraschedular ratings as directly raised and argued by the Veteran. During the January 2019 VA examination, the Veteran reported that tinnitus kept him awake at night. See 1/18/2019 C&P Examination. The symptom of sleep disturbance is not contemplated by the schedular rating criteria for tinnitus. Although listed in the rating criteria under the General Rating Formula for Mental Disorders, the Veteran has asserted his sleep disturbance is caused by tinnitus, not necessarily that he has a separate mental health disability. However, even assuming that this complaint is reasonably due to his tinnitus, the Veteran’s reports of sleep disturbance do not cause marked interference with employment, and there is no evidence that he has ever been hospitalized due to sleep disturbance or any other symptoms caused by his tinnitus. The Veteran has not stated that his sleep disturbance symptom interferes, let alone markedly interferes with his employment. The Board also observes that the evidence does not show that this symptom occurs frequently enough or lasts long enough to interfere with occupational functioning, as the Veteran did not specify how frequently the symptom of sleep disturbance occurs. However, even if sleep disturbance occurs frequently or on a prolonged basis, there is still no indication that it results in marked interference with employment. Therefore, assuming this symptom is not adequately described by the rating criteria, and further assuming it is due to/part of the tinnitus condition, such that an exceptional or unusual disability picture is shown, the second element is still not satisfied, namely related factors such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 116. Both elements must be satisfied to warrant extraschedular referral. Yancy v. McDonald, 27 Vet. App. 484, at 494-495. In sum, the Board finds that the preponderance of the evidence weighs against referral for extraschedular consideration for tinnitus. Consequently, as the weight of the evidence is against a higher rating for tinnitus, the benefit of the doubt doctrine does not apply, and the Veteran’s claim and extraschedular referral is denied. 38 C.F.R. § 4.3. REASONS FOR REMAND Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Furthermore, the threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety, schizophrenia, and bipolar disorder. After review of the record, a remand is required in this case to ensure that VA’s responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that his psychiatric disorders were caused by military service. Specifically, he indicated that he had disciplinary issues in service and contends that his disciplinary issues were manifestations of his mental health disability. See 6/14/2018 Military Personnel Record, at page 4. Additionally, the Veteran asserted that the Navy thought that he had PTSD but failed to diagnose him. Further, the Veteran endorsed 5 stressors related incidents that occurred in-service: (1) “flight deck arrest gear broke and hit fellow sailor killing him instantly;” (2) “Marice Pierce (E-3) killed non-battle;” (3) “fellow sailor fell off ship and was never recovered;” (4) “Dennis Johnson (E-2) killed non-battle;” and (5) “Steve Smith injured non-battle.” See 3/28/2019 VA Form 21-0781; see also 4/18/2020 Form 9. VA treatment records showed that the Veteran was diagnosed with PTSD, depression, and schizophrenia. See 11/26/2018 CAPRI, at page 24; see also 12/13/2018 CAPRI, at page 17. Additionally, private treatment records showed the Veteran was diagnosed with anxiety and bipolar disorder. See 8/29/2019 Medical Treatment Record – Non-Government Facility, at page 34. As noted above, the Veteran has suggested that his mental health disabilities manifested as behavior that culminated in disciplinary actions against him. The Agency of Original Jurisdiction (AOJ) did not obtain a VA examination regarding whether the Veteran’s acquired psychiatric disorders are due to his active service. However, based on the evidence of record, the Board finds that a VA psychiatric examination/medical opinion is required. On remand, the AOJ should take appropriate action to schedule a VA psychiatric examination.   2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a neck and back disability. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for migraine headaches, to include as due to the Veteran’s service-connected tinnitus. After review of the record, a remand is required in this case to ensure that VA’s responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for a bilateral knee disability and for a neck and back disability as due to his military duties. Additionally, the Veteran contends service connection for migraines, to include as due to the service-connected tinnitus. See 4/14/2019 NOD; see also 10/8/2020 Appellate Brief, at page 3. The record showed that the Veteran was diagnosed with back pain, traumatic arthritis of the right knee, and pain and weakness of the left knee. In addition, the Veteran was diagnosed with tension headaches. See 3/5/2019 Medical Treatment Record – Non-Government Facility; see also 8/29/2019, at page 17. The record showed that the Veteran has been diagnosed with bilateral knee disabilities and a neck and back disability. Additionally, the Veteran submitted lay evidence suggesting a relationship between his diagnosed bilateral knee and neck and back disabilities, and service. Further, the record showed that the Veteran has been diagnosed with tension headaches. The Veteran submitted lay evidence suggesting a relationship between his migraine headaches and his service-connected tinnitus. Therefore, the Veteran must be afforded VA examinations to determine the nature and etiology of the Veteran’s bilateral knees, migraine headaches, and neck and back disabilities.   6. Entitlement to service connection for hypertension, to include as due to an acquired psychiatric disability. With respect to the Veteran’s claim for service connection for hypertension, to include as due to an acquired psychiatric disorder, the Board finds that this claim is inextricably intertwined with his pending service connection claim for an acquired psychiatric disorder. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact’ upon another and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources the two claims are inextricably intertwined). Therefore, the adjudication of the Veteran’s claim for service connection for hypertension is deferred pending adjudication of the Veteran’s service connection claim for an acquired psychiatric disorder. These matters are REMANDED for the following action: 1. Update any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completion of step # 1, schedule the Veteran for a psychiatric examination by an appropriate clinician to determine the nature and etiology of any current mental health disorder. The clinician is to review the virtual file, including a copy of this Remand. The examiner is to identify any current psychiatric disorder, to include PTSD, depression, anxiety, schizophrenia, bipolar disorder, or any other psychiatric disorder. After a review of the claims file, the examiner must address: (a.) Compile a list of all psychiatric disorders. (b.) For EACH psychiatric disorder identified on the current examination, state whether it is at least as likely as not (probability of 50 percent or more) that any of the Veteran’s current psychiatric disorders, in whole or part, had their onset in service. **In doing so, please note the following: Regarding in-service symptoms, the Veteran has suggested that his mental health issues manifested as disciplinary problems that resulted in disciplinary actions against him.** A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completion of step # 1, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran’s migraine headaches, bilateral knee, and neck and back disabilities. The clinician is to review the virtual file, including a copy of this Remand.   After review of the claims file, the examiner is to specifically address: (a.) Whether it is at least as likely as not that the Veteran’s current left knee disability is related to an in-service injury, event, or disease. (b.) Whether it is at least as likely as not that the Veteran’s current right knee disability is related to an in-service injury, event, or disease. (c.) Whether it is at least as likely as not that the Veteran’s current neck and back disability is related to an in-service injury, event, or disease. (d.) Whether it is at least as likely as not that the Veteran’s current migraine headache disability is related to an in-service injury, event, or disease. (e.) Whether it is at least as likely as not that the Veteran’s current migraine headache disability is (1) proximately due to, OR (2) aggravated by a service-connected disability, to include tinnitus. (f.) If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.