Citation Nr: 21027585 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 19-23 576 DATE: May 6, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for asthma; to this extent, the appeal is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a benign chest tumor is denied. Entitlement to service connection for a pinched nerve of the left arm is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a stress ulcer is denied. Entitlement to an effective date prior to November 17, 2017 for the grant of service connection for tinnitus is denied. Entitlement to an effective date prior to November 17, 2017 for the grant of service connection for persistent depressive disorder with substance use disorder is denied. Entitlement to an initial rating higher than 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for a respiratory disability, to include exercise-induced asthma, is remanded. Entitlement to an initial rating higher than 30 percent for persistent depressive disorder with substance use disorder, prior to June 8, 2019, and to a rating higher than 50 percent, thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Entitlement to service connection for asthma was denied by the RO in a July 2013 rating decision; the Veteran did not complete a substantive appeal or submit new and material evidence within one year. 2. Some of the evidence received since the July 2013 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating a claim for service connection for asthma. 3. The Veteran does not have a bilateral hearing loss disability as defined by VA regulations. 4. The preponderance of the evidence is against a finding that the Veteran has a benign chest tumor that was caused by or incurred in service or is secondary to a service-connected disability. 5. The preponderance of the evidence is against a finding that the Veteran has a pinched nerve of the left arm that was caused by or was incurred in service or is secondary to a service-connected disability. 6. The preponderance of the evidence is against a finding that the Veteran has a left knee disability that was caused by or was incurred in service or is secondary to a service-connected disability. 7. The preponderance of the evidence is against a finding that the Veteran has a stress ulcer that was caused by or was incurred in service or is secondary to a service-connected disability. 8. The Veteran separated from service in March 2010. 9. A claim for service connection for tinnitus was received in November 2017. By rating decision dated in January 2018, the RO granted service connection for tinnitus, and awarded an effective date of November 17, 2017, the date of the Veteran's claim. 10. No communication prior to November 2017 may be interpreted as an informal claim of entitlement to service connection for tinnitus. 11. Entitlement to service connection for a psychiatric disorder, claimed as dysthymic disorder, was denied in a July 2013 rating decision. The Veteran did not appeal that decision, nor has she filed a claim for revision of that denial based upon clear and unmistakable error (CUE); the July 2013 decision is final. 12. A claim for service connection for a psychiatric disorder, claimed as depression, was received in November 2017. By rating decision dated in January 2018, the RO granted service connection for the Veteran's psychiatric disorder, and awarded an effective date of November 17, 2017, the date of the Veteran's claim. 13. No communication received from the last final decision in July 2013 to November 2017 may be interpreted as an informal claim of entitlement to service connection for a psychiatric disorder. 14. For the entire period on appeal, the Veteran is receiving the maximum schedular evaluation for tinnitus. CONCLUSIONS OF LAW 1. The July 2013 rating decision that denied entitlement to service connection for asthma is final. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.105 (a), 3.156, 20.1103. 2. The evidence received since the July 2013 rating decision is new and material, and the Veteran's claim for service connection for asthma is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for service connection for a benign chest tumor are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a pinched nerve of the left arm are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for a stress ulcer are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for an effective date earlier than November 17, 2017 for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.400. 9. The criteria for an effective date earlier than November 17, 2017 for the grant of service connection for persistent depressive disorder with substance use disorder have not been met. 38 U.S.C. § 5110, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.400. 10. There is no legal basis for the assignment of an initial disability rating higher than 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 2008 to March 2010. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2019 rating decision, the RO granted an increased evaluation of 50 percent for the Veteran's psychiatric disorder, dysthymia, effective June 2019. Despite the grant of this increased evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, she is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the 50 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993). Petition to Reopen 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for asthma. The Veteran seeks to reopen her claim for entitlement to service connection for asthma. Notwithstanding a determination by the RO that new and material evidence has or has not been received to reopen the Veteran's claim, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 283 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record with respect to this claim reflects that a claim for service connection for asthma was last denied in a rating decision of July 2013. The Veteran did not express timely disagreement or submit new and material evidence within one year and subsequently the rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran's claim for service connection may only be reopened if new and material evidence is submitted. In this instance, since the July 2013 rating decision denied the claim on the basis that the Veteran did not have a current diagnosis, the Board finds that new and material evidence would consist of evidence of a current diagnosis. The evidence received since the July 2013 rating decision consists of numerous records and documents. A May 2018 VA treatment note indicates the Veteran has "slight asthma." The Board notes that this May 2018 treatment note does not contain any diagnostic testing results and asthma is not listed as an active problem; however, as noted, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. Thus, the Board finds this is evidence of a possible current diagnosis of asthma. As a result, the Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for asthma. The Board determines that the claim is reopened. Service Connection The Veteran seeks entitlement to service connection for bilateral hearing loss, a benign chest tumor, a pinched nerve of the left arm, a left knee disability, and a stress ulcer. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent 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 disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 2. Entitlement to service connection for bilateral hearing loss. Unfortunately, the preponderance of medical evidence of record does not show the Veteran has a current bilateral hearing loss disability, as defined by VA regulations. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran was afforded a VA examination in December 2017. On the authorized audiological examination in December 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 25 35 LEFT 25 25 25 35 35 Speech recognition was 96 percent, bilaterally. As such, the Board finds that the Veteran does not have a diagnosis of bilateral hearing loss for VA purposes. There are no audiological evaluations of record that demonstrate a bilateral hearing loss, as defined by VA regulations. Full consideration has been given to the Veteran's assertions. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the presence of a hearing loss disability for VA purposes, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Testing results indicate the Veteran does experience diminished hearing, bilaterally, and although the Veteran is competent and credible to report diminished hearing, she is not competent to report specific results of audiometric and word recognition testing, as required by 38 C.F.R. § 3.385. Nor is there any indication she received any special training or acquired medical expertise in evaluating hearing disorders. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Thus, the Board finds the medical evidence of record, including audiometric and speech recognition testing, is of greater probative value than the Veteran's lay statements. As the competent, credible medical evidence of record shows that the Veteran has not had a current diagnosis of a bilateral hearing loss disability as defined by regulation at any time during the current appeal, the preponderance of the evidence weighs against the claim and it must be denied. 3. Entitlement to service connection for a benign chest tumor. 4. Entitlement to service connection for a pinched nerve of the left arm. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to service connection for a stress ulcer. The Veteran seeks entitlement to service connection for a benign chest tumor, a pinched nerve of the left arm, a left knee disability and a stress ulcer. The Board concludes that the preponderance of the evidence is against finding that the Veteran has a current benign chest tumor, pinched nerve of the left arm, left knee disability or a stress ulcer that began during active service, are otherwise related to an in-service injury, event, or disease, or were caused or aggravated by a service-connected disability. The Board notes that service treatment records document the Veteran's October 2007 enlistment examination did not note any abnormalities pertaining to a chest tumor, pinched nerve of the arm, left knee, or a stress ulcer. Service treatment records do not document any complaints, treatment or diagnoses of a chest tumor or stress ulcer. The Veteran sought treatment for pain in the right and left lower legs, below the knee, in November 2008. She indicated there was no trauma or injury; after examination, she was diagnosed with shin splints. The Veteran also sought treatment for swelling and pain of the left hand in December 2009. She reported pain, swelling, spasms, and tingling of the fingers. She was assessed with overuse syndrome. The separation examination from December 2009 did not note any chest tumor, pinched nerve of the left arm, left knee, or stress ulcer. Unfortunately, there are no post-service medical records indicating complaints, treatment or diagnoses of a chest tumor, pinched nerve of the left arm, left knee disability or stress ulcer. Crucially, aside from the Veteran's general claims for service connection, the Board notes that the Veteran failed to present any specific allegations or argument advancing a particular theory of entitlement for any of the claimed disabilities. The Veteran has not submitted any lay or medical evidence regarding current symptoms, current functional impairment, treatment, or diagnoses. The Board acknowledges that the Veteran has not been afforded VA examinations with respect to these claims. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). A VA examination under the standards of McLendon is not warranted as there is no persuasive evidence establishing current disabilities or current functional impairments. While the Veteran is competent to report current symptoms, she has submitted no lay statements regarding post-service symptoms or functional impairments. Additionally, as noted, there is no post-service medical evidence indicating the Veteran suffers from any of the claimed disabilities. Other than the Veteran's general service connection claims, there is no lay or medical evidence to support her claims. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion as to the claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make findings with regard to the complexities of a tumor, a pinched nerve in the left arm, a left knee disability, and a stress ulcer. The Board finds that such etiology findings and diagnoses fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For the reasons stated above, the Board finds that the preponderance of evidence is against the claims of entitlement to service connection for a benign chest tumor, a pinched nerve of the left arm, a left knee disability, and a stress ulcer, and must be denied. There is no reasonable doubt to be resolved as to these issues. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Earlier Effective Dates The Veteran seeks entitlement to earlier effective dates for the grant of service connection for tinnitus and persistent depressive disorder with substance use disorder. If received within 1 year after separation from service, the effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. In general, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date the claim was received or the date the entitlement arose, whichever is later. Id. The Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995)). 7. Entitlement to an effective date prior to November 17, 2017 for the grant of service connection for tinnitus. Service connection for tinnitus was granted in a January 2018 rating decision and awarded an effective date of November 17, 2017, the date of the Veteran's claim. The Veteran has not presented any theory of entitlement for an earlier effective date for the award of service connection, nor has she expressed what effective date for the award she considers to be appropriate, other than "earliest possible." See March 2018 notice of disagreement. Here, the Veteran was discharged from service in 2010. She did not raise a claim for entitlement to service connection for tinnitus within a year from discharge. Rather, the Veteran first raised a service connection claim for tinnitus in November 2017. Because the Veteran did not apply for service connection for this issue within one year of separation from service, an effective date back to the day following discharge is not possible. Instead, the appropriate effective date is 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 (b)(2). Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; claims are now required to be submitted on a specific claim form, prescribed by the Secretary, and available online or at the local RO. From March 24, 2015 to November 17, 2017, there are no formal claims for entitlement to service connection for tinnitus. Prior to March 24, 2015, VA recognized formal and informal claims. The Board has considered whether any evidence of record prior to March 24, 2015 could serve as an informal claim, in order to entitle the Veteran to an earlier effective date. In this regard, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Unfortunately, the Board finds that the Veteran did not submit any informal or formal claim for service connection for tinnitus prior to the assigned effective date of November 17, 2017. The record indicates that November 17, 2017 is the date of the Veteran's initial claim for service connection for tinnitus. The record does not show that the Veteran filed a claim of entitlement to service connection for tinnitus at any point prior to November 17, 2017. Thus, an earlier effective date is not warranted for the grant of service connection for tinnitus. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). In sum, the Board finds that the currently assigned effective date of November 17, 2017 is the earliest effective date allowed under the law. The preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107 (b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. Entitlement to an effective date prior to November 17, 2017 for the grant of service connection for persistent depressive disorder with substance use disorder. Service connection for a psychiatric disorder was denied in a July 2013 rating decision. The Veteran did not appeal this decision. Furthermore, the Board notes that the Veteran has not filed a motion for revision of the July 2013 rating decision on the basis of clear and unmistakable error (CUE). This decision is final and the date of the claim for service connection necessarily must be after the date of the last final decision in July 2013. See 38 C.F.R. §§ 3.105, 3.400. A claim for service connection for a psychiatric disorder was later received in November 2017. By rating decision dated in January 2018, the RO granted service connection for the Veteran's psychiatric disorder and awarded an effective date of November 17, 2017, the date of the Veteran's claim. Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; claims are now required to be submitted on a specific claim form, prescribed by the Secretary, and available online or at the local RO. From March 24, 2015 to November 17, 2017, there are no formal claims for entitlement to service connection for a psychiatric disorder. Prior to March 24, 2015, VA recognized formal and informal claims. The Board has considered whether any evidence of record prior to March 24, 2015 could serve as an informal claim, in order to entitle the Veteran to an earlier effective date. In this regard, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Unfortunately, the Board finds that the Veteran did not submit any informal or formal claim for service connection for a psychiatric disorder after the final decision in July 2013, but prior to the assigned effective date of November 17, 2017. The Board acknowledges that medical records reflect psychiatric treatment prior to November 17, 2017; however, the mere existence of medical evidence of a diagnosis and treatment does not establish an intent to seek service connection or entitlement to an earlier effective date. See Brannon v. West, 12 Vet. App. 32, 35 (1998). While the record shows that the Veteran had a psychiatric disorder prior to November 2017, the record includes neither a formal nor informal claim for service connection from the last final decision in July 2013 until the current effective date of November 17, 2017. Therefore, there is no legal basis for the assignment of an earlier effective date under any other provision of law pertaining to the assignment of effective dates. As noted, the Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995)). The Veteran has not presented any theory of entitlement for an earlier effective date for the award of service connection, nor has she expressed what effective date for the award she considers to be appropriate other than "earliest possible." See March 2018 notice of disagreement. The rules pertaining to the effective dates of awards of VA compensation are prescribed by Congress, and neither the AOJ nor the Board is free to disregard them. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.101 (a). Regardless of the equities of the Veteran's situation, the AOJ and the Board can only allow benefits that are explicitly authorized. See Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). In this case, an effective date earlier than November 17, 2017 for the award of service connection for the Veteran's psychiatric disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating 9. Entitlement to an initial rating higher than 10 percent for tinnitus. Service connection for tinnitus was granted in a January 2018 rating decision, at which time a 10 percent rating was assigned, effective November 17, 2017. The Veteran seeks an increased rating. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126. The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The regulations pertaining to the evaluation of diseases and injuries of the ears were revised effective June 10, 1999. See 64 Fed. Reg. 25, 202 (1999) (codified at 38 C.F.R. § 4.85-4.87). The regulation was again revised in May 2003, effective June 13, 2003. See 68 Fed. Reg. 25,822 (2003). The June 13, 2003 revision was undertaken, in part, to clarify existing VA practice that only a single 10 percent evaluation is assigned for recurrent tinnitus pursuant to Diagnostic Code 6260, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2. In this case, the Veteran filed her claim in November 2017, which is after the June 2003 change that clarified only a single 10 percent evaluation is assigned for recurrent tinnitus, pursuant to Diagnostic Code 6260. Ten percent is the maximum rating, whether the sound is perceived as being in one ear, both ears, or in the head. Therefore, no more than a single 10 percent rating is permissible for the Veteran's tinnitus. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (affirming the VA's long-standing interpretation of pre-June 13, 2003 Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral). In light of the foregoing, the Board concludes that Diagnostic Code 6260 precludes separate 10 percent schedular ratings for bilateral tinnitus. On a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). If a Veteran is at the maximum evaluation and no other criteria are applicable, there is no case in controversy. In order for a claim to proceed, there must be a benefit. In this case, the maximum schedular rating allowed for tinnitus under the applicable schedule of ratings is 10 percent. As such, a higher schedular rating cannot be granted. As there is no legal basis upon which to award an increased schedular evaluation, the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 10. Entitlement to service connection for a respiratory disability, to include exercise-induced asthma. The Veteran seeks entitlement to service connection for asthma. Service treatment records document multiple instances of treatment for complaints of shortness of breath while running and exercising. See, e.g., May 2009, June 2009, July 2009, and December 2009 service treatment records. The May 2009 service treatment note indicated she was assessed with suspect paroxysmal vocal cord dysfunction, exercise induced bronchospasm. Several pulmonary function tests were normal; however, the Veteran was prescribed Montelukast and an Albuterol inhaler. Post service, the Veteran was afforded a VA examination in December 2017. The Veteran reported only experiencing symptoms while exercising, stating that her symptoms began during service in Texas and after running for a few minutes, her lungs get wheezy and start restricting. She reported the symptoms have stayed the same. After examination, the examiner stated that the Veteran did not have any pathology to render a diagnosis. Importantly, the examiner did not answer the question regarding functional impact of the Veteran's symptoms, which is necessary to evaluate the Veteran's claim. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). On remand, the examiner must indicate whether the Veteran experiences a functional impairment of earning capacity. Furthermore, the examiner indicated that exercise capacity testing was not performed. Considering the Veteran reported only experiencing symptoms while running or exercising, the Board finds the Veteran should be afforded a new VA examination that includes exercise capacity testing. If exercise capacity testing is not medically indicated, the examiner should explain why. 11. Entitlement to an initial rating higher than 30 percent for persistent depressive disorder with substance use disorder, prior to June 8, 2019, and to a rating higher than 50 percent, thereafter. The Veteran seeks entitlement to an increased rating for her service-connected psychiatric disorder. Since issuance of the statement of the case in June 2019, additional medical evidence relevant to this issue has been associated with the Veteran's claims file. Specifically, a private psychiatric evaluation submitted by the Veteran was added to the clams file in December 2019 after the June 2019 statement of the case, but was not considered by the Agency of Original Jurisdiction (AOJ) before the Veteran's appeal was transferred to the Board in May 2020. The Board notes that applicable VA regulations require that pertinent evidence received by the RO prior to the transfer of the matter to the Board must be referred to the appropriate rating or authorization activity for review and preparation of a supplemental statement of the case. 38 C.F.R. § 19.37. Accordingly, as the record does not show that the AOJ readjudicated the claim with consideration of the additional, relevant evidence of record received prior to transfer of the appeal to the Board, a remand is required for the issuance of a supplemental statement of the case. 38 C.F.R. §§ 19.31, 19.37. 12. Entitlement to a TDIU. Finally, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the issues of entitlement to service connection for asthma and entitlement to an increased rating for the Veteran's psychiatric disorder, as the Veteran does not currently meet the required schedular percentages for TDIU. Therefore, the Board finds that a decision on this issue should be postponed until the development ordered on remand is completed. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran a VA examination for her claimed exercise-induced asthma. The claims folder must be provided to the examiner for review. The examiner should state in the examination report that the claims folder has been reviewed. *All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, to include exercise capacity testing, if indicated. *If exercise capacity testing is not indicated, the examiner should explain why it was not performed. *The examiner should diagnose any current respiratory disorders, to include exercise-induced asthma, and/or paroxysmal vocal cord dysfunction. *If no such disorder is identified, the examiner must indicate whether the Veteran's reported respiratory symptoms cause any functional impairment. *For any respiratory disorder diagnosed, or if it is determined the Veteran's respiratory symptoms cause functional impairment, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder/functional impairment had its onset during service or is otherwise causally or etiologically due to service, to include the documented reports of symptoms and treatment in service (See, e.g., May 2009, June 2009, July 2009, and December 2009 service treatment records with diagnoses of exercise-induced bronchospasms and suspect paroxysmal vocal cord dysfunction). *In rendering this opinion, the examiner is asked to consider whether there is a medically sound basis to attribute in any way the Veteran's respiratory disorder/functional impairment to her time in service. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After undertaking any additional development deemed appropriate, the AOJ must readjudicate the issues on appeal, to include consideration of the additional evidence obtained since it last adjudicated these claims. *Specific consideration should be given to all evidence received since the June 2019 statement of the case, to specifically include the private psychiatric evaluation received in December 2019. If the benefits sought on appeal remain denied, a supplemental statement of the case should be issued. The Veteran and her representative must be afforded an opportunity to respond before the record is returned to the Board. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.