Citation Nr: 21028135 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-26 868 DATE: May 10, 2021 ORDER An initial rating in excess of 10 percent for tinnitus is denied. Service connection for right ear hearing loss is denied. Service connection for a chronic headache disorder is denied. Service connection for hypertension is denied. Service connection for diabetes mellitus, type II, is denied. Service connection for a left leg disorder is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected chronic adjustment disorder with mixed anxiety and depressed mood, is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran is in receipt of a 10 percent rating, the schedular maximum under Diagnostic Code 6260, for his tinnitus, and he has not asserted manifestations of such disability that are not contemplated by the currently assigned schedular rating. 2. Throughout the appeal period, the Veteran has not been diagnosed with a right ear hearing loss as defined by VA regulations, and he was not diagnosed with such prior to the appeal period. 3. A left leg disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. 4. A chronic headache disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. 5. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of service. 6. Diabetes mellitus, type II, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of service. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 2. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for service connection for a left leg disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a chronic headache disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 6. The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1975 to October 1988; however, due to the character of discharge from a latter portion of his service, he is only eligible for VA benefits stemming from the portion of his service spanning from April 1975 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2014 and July 2015 by a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2019, the Board issued a decision that, in relevant part, remanded the aforementioned claims, as well as service connection claims for a psychiatric disorder to include posttraumatic stress disorder (PTSD) and a disorder manifested by a memory impairment, as well as a claim seeking an earlier effective date for the grant of service connection for tinnitus. With regard to the remanded earlier effective date claim, the Board remanded this claim to the RO/Agency of Original Jurisdiction (AOJ) to allow issuance of a statement of the case, per Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The AOJ issued this statement of the case in February 2021, and as the Veteran has not yet submitted a substantive appeal of this claim, the Board does not jurisdiction to review the claim further at this time. With regard to the remanded claims for service connection for a psychiatric disorder, to include PTSD, and service connection for a disorder manifested by memory loss, the AOJ conducted the requested development with regard to these claims, resulting in a VA psychiatric examination and medical opinion determining that while the Veteran's psychiatric symptomatology does not meet the diagnostic criteria for PTSD, his symptomatology meets the criteria for a chronic adjustment disorder, whose symptoms include memory loss, which results from his in-service traumatic experiences. Accordingly, in a February 2021 rating decision, the AOJ granted service connection for a chronic adjustment disorder, notifying the Veteran that such was a grant of his psychiatric disorder, PTSD, and memory loss disorder service connection claims. Thus, while a subsequent supplemental statement of the case adjudicated a service connection claim for PTSD, and the AOJ recertified this service connection claim to the Board for further appellate review, the Board determines that the AOJ's grant of service connection for a chronic adjustment disorder is indeed a grant of the benefit sought with regard to his psychiatric disorder, PTSD, and memory loss disorder service connection claims, thereby extinguishing the related appeals. The remaining claims on appeal are now ripe for further appellate review. Increased Rating Claim for Tinnitus Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Tinnitus is rated under Diagnostic Code 6260, which was revised effective June 13, 2003, to codify existing VA practice of assigning a single 10 percent rating for recurrent tinnitus, 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). As the Veteran's service-connected tinnitus has been assigned the maximum schedular rating available pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260, and as there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, there is no legal basis upon which to award a higher schedular rating. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Further, as the Veteran has not asserted manifestations of his service-connected tinnitus that are not contemplated by the currently assigned schedular rating, referral for consideration for an extraschedular evaluation is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, the Veteran's claim for a rating in excess of 10 percent for tinnitus must be denied. Service Connection Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as diabetes mellitus, cardiovascular diseases including hypertension, and organic diseases of the nervous system, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by the 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Right Ear Hearing Loss, Left Leg, Headaches, Hypertension and Diabetes Claims As an initial matter, the Board notes that it appears that the Veteran's service treatment records from his period of honorable, active service have not been located. Rather, the service treatment of record relates to the period of service for which he is ineligible for VA benefits, and the only eligible service treatment record that has been located is the Veteran's enlistment medical examination report, which was associated with his service personnel records. Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board further notes that the Veteran has made no assertions regarding the potential relationship between his claimed disabilities and service, aside from reporting that his headache began during service in June 1985, his hearing loss began during service in March 1986, and his left leg disorder began during service in April 1987, which were the reported dates of onset when initially filing these service connection claims. However, as the Veteran's reported dates of onset for these disorders all coincide with his period of service from May 1985 to May 1988 for which he is not eligible for VA compensation, these assertions regarding in-service onset cannot serve to substantiate his claims. Further, while the Veteran has current diagnoses of hypertension and diabetes mellitus, and while he is competent to report experiencing left leg and headache disorders (as such disorders are capable of lay observation), there is no basis of record for linking such disorders to service. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). In that regard, the Veteran has not asserted that these claimed disorders had their onset in or are otherwise related to his period of active, honorable service, and there is no evidence of record to suggest such a correlation. Rather, the Veteran's medical treatment of record reflects that he was initially diagnosed with hypertension in 2008, with diabetes mellitus in 2013, and reported the recent onset of his headaches in 2009. As such, there is no basis for determining that the Veteran's claimed disorders had their onset during or soon after service (to include manifesting to a compensable degree within the presumptive period after service for qualifying chronic disabilities), thereby negating theories of direct or presumptive service connection. Further, with regard to the Veteran's service connection claim for right ear hearing loss, the audiological evidence of record fails to reflect that the Veteran has a right ear hearing loss disability, as that term is defined by VA regulation. See 38 C.F.R. § 3.385. Specifically, audiological testing performed during the Veteran's November 2013 VA audiological examination and in conjunction with VA audiological treatment rendered in July 2015 failed to reflect hearing acuity of sufficient severity to meet the VA regulatory definition of hearing loss. Absent a diagnosis of a claimed disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In sum, the evidence of record fails to reflect that the Veteran has a current right ear hearing loss, as defined for VA purposes, or that his current hypertension, diabetes mellitus, headache disorder, and left leg disorder are related to his period of active, honorable service or manifested soon after service. As such, service connection for these claimed disorders is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for right ear hearing loss, hypertension, diabetes mellitus, and left leg and headache disorders. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND The Veteran asserts that his currently diagnosed OSA is caused or aggravated by his service-connected psychiatric disorder, and he has submitted articles summarizing medical studies finding a correlation between OSA and certain psychiatric disorders, namely PTSD. As no medical opinion is of record addressing such a theory of secondary service connection, the Board finds that such an opinion must be obtained on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination and/or medical opinion is necessary if, inter alia, evidence indicates that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or service-connected disability). The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding whether the Veteran's OSA is at least as likely as not (a) proximately due to his service-connected chronic adjustment disorder with mixed anxiety and depressed mood and/or (b) aggravated (worsened) by his service-connected chronic adjustment disorder with mixed anxiety and depressed mood. The clinician should review the claims file prior to rendering this opinion, to specifically include the articles submitted by the Veteran summarizing medical studies that have found a correlation between OSA and certain psychiatric disorders. A complete rationale must be provided for all opinions offered. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Northcutt, 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.