Citation Nr: 22008035
Decision Date: 02/11/22	Archive Date: 02/11/22

DOCKET NO. 19-31 943
DATE:       February 11, 2022

ORDER

Service connection for obstructive sleep apnea (OSA), as secondary to service-connected disabilities, is granted, subject to the laws and regulations governing the award of monetary benefits. 

Service connection for headaches, as secondary to the service-connected anxiety disorder, is granted, subject to the laws and regulations governing the award of monetary benefits.

Service connection for a low back condition is denied.

Service connection for hyperthyroidism, with restless leg syndrome (RLS), is denied.

Service connection for right ear hearing loss is denied.

Service connection for gastroenteritis is denied.

Service connection for sinusitis is denied.

Service connection for hypertension is denied.

An effective date for the grant of service connection for anxiety, prior to January 27, 2010, is denied.

An effective date for the grant of service connection for tinnitus, prior to January 27, 2010, is denied.

An effective date for the grant of service connection for a right ankle disability, prior to January 27, 2010, is denied.

An effective date for the grant of service connection for left ear hearing loss, prior to January 27, 2010, is denied.

An effective date for the grant of service connection for a right tibial fracture, prior to January 27, 2010, is denied.

An initial rating in excess of 10 percent for tinnitus is denied. 

An initial compensable rating for hearing loss of the left ear is denied.

A 20 percent rating for a right ankle disability is granted, subject to the laws and regulations governing the award of monetary benefits. 

An initial rating in excess of 10 percent for a right tibial fracture is denied.

An initial 50 percent rating, from January 27, 2010, for anxiety, is granted, subject to the laws and regulations governing the award of monetary benefits. 

A total disability rating based on individual unemployability (TDIU), from January 27, 2010, forward, is granted, subject to the laws and regulations governing the award of monetary benefits.

FINDINGS OF FACT

1. The weight of the evidence supports finding that the Veteran's OSA is due to the medication required for the service-connected anxiety disorder and right ankle disabilities. 

2. The weight of the evidence supports finding that the Veteran's headaches are due to his service-connected anxiety disorder. 

3. The weight of the evidence is against finding that the Veteran had any in-service incurrences regarding his low back; or that any back condition had its onset during his active duty service, or is otherwise related to his military service. 

4. The weight of the evidence is against finding that the Veteran has had a diagnosed thyroid or RLS condition at any time during the period on appeal. 

5. The Veteran does not have right ear hearing loss for VA purposes. 

6. The weight of the evidence is against finding that the Veteran's gastroenteritis had its onset during his active duty service, or is otherwise related to his active-duty service. 

7. The weight of the evidence is against finding that the Veteran's sinusitis had its onset during his active duty service, or is otherwise related to his active-duty service. 

8. The weight of the evidence is against finding that the Veteran's hypertension had its onset during his active duty service, or is otherwise related to his active-duty service. 

9. VA received the Veteran's VA Form 21-526, Application for Compensation or Pension, on January 27, 2010, that included service connection claims for anxiety, tinnitus, a right ankle condition, left ear hearing loss, and a right leg condition. 

10. No formal or informal application to assert a service connection claim for anxiety, tinnitus, a right ankle condition, left ear hearing loss, and a right leg condition was received prior to January 27, 2010. 

11. Throughout the entire appeal period, the Veteran has been in receipt of the maximum schedular rating for tinnitus. 

12. At worst, the Veteran's left ear hearing loss has been characterized by numeric designation Level I in his left ear. 

13. The weight of the evidence supports finding that the Veteran's right ankle has shown dorsiflexion limited to 10 degrees or less, but there is no evidence of ankylosis, malunion of the os calcis or astragalus, or astragalectomy.

14. The Veteran's right tibial fracture did not result in ankylosis; recurrent subluxation or lateral instability; dislocated or removed meniscus; flexion functionally limited to 60 degrees or less; extension functionally limited to 5 degrees or more; an impairment of the tibia and fibula; or genu recurvatum.

15. Resolving all reasonable doubt in the Veteran's favor, from January 27, 2010, his anxiety symptoms have been shown to cause reduced reliability and productivity for the entire appeal period, but have not been shown to cause occupational and social impairment, with deficiencies in most areas, or total social and occupational impairment.

16. From January 27, 2010, resolving reasonable doubt in favor of the Veteran, his service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for service connection for OSA, as secondary to service-connected disabilities, have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 

2. The criteria for service connection for headaches, as secondary to the service-connected anxiety disorder, have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 

3. The criteria for service connection for a low back condition have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 

4. The criteria for service connection for hyperthyroidism, with RLS, have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 

5. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385.

6. The criteria for service connection for gastroenteritis have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 

7. The criteria for service connection for sinusitis have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 

8. The criteria for service connection for hypertension have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 

9. The criteria for an effective date earlier than January 27, 2010, for the grant of service connection for anxiety, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400.

10. The criteria for an effective date earlier than January 27, 2010, for the grant of service connection for tinnitus, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400.

11. The criteria for an effective date earlier than January 27, 2010, for the grant of service connection for a right ankle disability, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400.

12. The criteria for an effective date earlier than January 27, 2010, for the grant of service connection for left ear hearing loss, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400.

13. The criteria for an effective date earlier than January 27, 2010, for the grant of service connection for a right tibial fracture, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400.

14.  The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260. 

15. The criteria for an initial compensable rating for hearing loss of the left ear have not been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, 4.86 Diagnostic Code 6100.

16. The criteria for a 20 percent rating for a right ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5270-74.

17. The criteria for an initial rating in excess of 10 percent for a right tibial fracture, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263.

18. The criteria for an initial 50 percent rating, but no higher, for anxiety, from January 27, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.126, 4.130, Diagnostic Code 9413. 

19. The criteria for a TDIU rating, from January 27, 2010, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 2002 to June 2008. 

As an initial matter, the Board notes that two separate Legacy appeal system streams were merged. The first stream stems from a January 2010 claim and the second stream stems from a January 2015 claim. See VA Forms VA 21-526 dated January 27, 2010 and January 28, 2015.  

The first stream contains the service connection claims for right ear hearing loss, gastroenteritis, sinusitis, hypertension, and for hyperthyroidism; the increased rating claims for anxiety disorder, a tibial fracture, a right ankle condition, tinnitus, left ear hearing loss; and earlier effective date claims for anxiety disorder, a tibial fracture, a right ankle condition, tinnitus, left ear hearing loss. A discussion of the relevant periods on appeal will be located in the appropriate sections. 

The Board acknowledges that additional evidence and argument has been associated with the Veteran's claims file, after the issuance of the respective statement of the cases (SOCs). However, an August 2020 correspondence from the Veteran's representative waived regional office review, and wanted the Board to proceed with adjudication of the issues on appeal. As such, the Board will proceed with adjudication. 

Service Connection

1. Service connection for OSA is granted.

2. Service connection for headaches is granted.

The Veteran asserts that his OSA and headaches are due to service-connected disabilities. 

A review of the Veteran's service treatment records (STRs) does not show complaints for headache pain, but do show that he complained of sleep trouble. He also endorsed sleeping trouble in an April 2008 report of medical history. 

The Veteran was afforded a VA examination for OSA in September 2016. After an in-person examination and a review of the Veteran's claims file, the examiner provided a negative nexus opinion. The examiner explained that his STRs were negative for complaints of sleep problems in May 2008, and he showed no sleep complaints in the year following separation. 

The Veteran was not afforded a VA examination for headaches. 

The Veteran provided medical opinions for OSA and for headaches from a private physician in August 2020. The physician noted that the Veteran was diagnosed with migraines and OSA. After a review of the Veteran's claims file, the physician provided positive nexus opinions. Regarding OSA, the physician explained that research has shown that psychiatric disorders are commonly associated with OSA. The same study found that with CPAP treatment, both OSA and psychiatric symptoms decreased, providing further evidence of a co-morbidity. The physician also cited to research studies that showed psychiatric and pain medication may produce or exacerbate sleep disturbances. 

Regarding headaches, the examiner explained that the medical research showed that patients with mental health conditions were more likely to develop headaches because pain and mood are actually regulated by the same part of the brain. It is well established that mental disorders both cause and aggravate headaches. 

Here, there is only one competent medical opinion regarding the service connection claim for headaches. The physician's opinion is afforded great probative weight because of her medical expertise, her review of the Veteran's claims file, and her explanation that mental health disorders and headaches are related to one another because they are regulated by the same part of the brain. Given the foregoing, the Board finds that the criteria for service connection have been met. 

Accordingly, service connection for headaches is warranted.

Regarding OSA, there are two competent medical opinions of record, a negative nexus opinion from the September 2016 VA examiner and a positive nexus opinion from the private physician. However, the Board affords the VA examiner's opinion very little probative weight because he simply pointed to a May 2008 examination as the reason for the negative nexus opinion. The examiner did not acknowledge the April 2008 note where the Veteran reported trouble sleeping. Further, the examiner did not explain the significance of the May 2008 treatment note being silent for sleep complaints. On the other hand, the private physician's opinion is afforded great probative weight. The physician cited to numerous research articles and explained that mental health disorders and OSA were related. The examiner pointed to a study that found with CPAP treatment, both OSA and psychiatric symptoms decreased, providing further evidence of a co-morbidity. Further, the physician noted that medications the Veteran uses for his service-connected anxiety disorder and for his service-connected musculoskeletal conditions has caused the Veteran's OSA. Given the foregoing, the Board finds that the weight of the evidence supports finding that service connection is warranted. 

Accordingly, service connection for OSA is granted.

3. Service connection for a low back condition is denied.

The Veteran asserts that he is entitled to service connection for a low back condition. However, the Veteran, nor his representative, have explained why they believe that service connection is warranted.

A review of the Veteran's STRs shows numerous complaints of musculoskeletal issues throughout the Veteran's active-duty service. However, there were no complaints, treatment, or diagnosis for any low back conditions. For example, the May 2008 separation examination showed a normal clinical evaluation of the spine; and in the "Summary of Defects and Diagnoses," there was no notation of low back or spinal conditions. 

A review of the Veteran's post-service treatment records does not reveal any information that would aid in his service connection claim for a back condition. 

The Board points out that the Veteran's representative has not provided any additional argument or evidence regarding the low back condition. For example, the representative obtained private medical opinions for the service connection claims for headaches and for OSA, but did not obtain one regarding the low back condition.  

The Board acknowledges the Veteran's service connection claim for a low back condition. However, the Veteran has not explained why service connection is warranted and there is no objective or lay evidence of an in-service incurrence, nor is there a competent medical nexus opinion linking his current back troubles to his active-duty service. Here, there is simply no evidence to indicate that service connection is warranted.

To the extent that the Veteran believes that his low back condition is the result of his active-duty service, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, because there was no indication of any in-service incurrences, a VA examination was not triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the Veteran has not offered any competent medical evidence that would suggest that service connection is warranted. 

Here, until the Veteran provides evidence of an in-service incurrence, an in-service onset of low back pain, in conjunction with a competent medical opinion, service connection cannot be granted for a low back condition. Here, there is no positive evidence indicating that service connection is warranted. Accordingly, service connection for a low back condition is denied.

In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine.  As the evidence persuasively favors one side or the other, the doctrine is not for application.  See Lynch v. McDonough, 2021 U.S. App. LEXIS 37307 (2021) at *11; 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

4. Service connection for hyperthyroidism, with RLS, is denied.

The Veteran asserts that he is entitled to service connection for hyperthyroidism, with RLS. However, the Veteran, nor his representative, have explained why they believe that service connection is warranted.

A review of the Veteran's STRs shows diagnoses for hyperthyroidism and for RLS. A May 2008 STR shows that hyperthyroidism was diagnosed after a thyroid panel was conducted. See STR dated May 29, 2008. Regarding RLS, a medical officer reported that they doubted the RLS diagnosis based on the history of leg motion during the day, but not at night while sleeping and recommended the discontinuance of the medication to see if any changes occurred. See STR dated May 13, 2008. 

The Veteran was afforded a VA examination in July 2010. The VA examiner indicated a thorough review of the Veteran's claims file. The examiner reported that a May 14, 2008 STR noted the Veteran's complaint of restless legs, but that a physical examination was negative for any diagnosis. Regarding the thyroid, the examiner acknowledged a suppressed TSH level, but also noted that the medical officer noted that such a finding may be a spurious result. A follow-up visit showed normal TSH levels, with no further documentation of problems. The examiner noted that a routine thyroid ultrasound was obtained, with unremarkable findings. 

A careful review of the Veteran's post-service medical records does not appear to show any diagnosis for hyperthyroidism or for RLS. In the absence of proof of a current disability, there can be no valid claim for service connection. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the Veteran has not shown by medical evidence, the presence of a current thyroid condition or RLS. Further, the Board points out that the Veteran's representative has not provided any additional argument or evidence regarding the thyroid and RLS. For example, the representative obtained private medical opinions for the service connection claims for headaches and for OSA, but did not obtain one regarding the thyroid or for RLS.  

Here, the July 2010 VA examiner explained that both in-service diagnoses, for hyperthyroidism and for RLS, appeared to have been made in error. The examiner explained that although RLS was suspected, a physical examination ruled out such a diagnosis; and that although one diagnostic test showed a possible thyroid condition, a follow-up test showed normal findings. Given that the in-service diagnoses were made in error, in conjunction with the fact that there is no current diagnosis for a thyroid condition or for RLS, service connection is not warranted. 

In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine.  As the evidence persuasively favors one side or the other, the doctrine is not for application.  See Lynch v. McDonough, 2021 U.S. App. LEXIS 37307 (2021) at *11; 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

5. Service connection for right ear hearing loss is denied.

The Veteran asserts that his right ear hearing loss is due to military acoustic trauma. The Board notes that the August 2014 rating decision granted left ear hearing loss, but denied right ear hearing loss because there was no hearing loss for VA purposes.

For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a Veteran's service and their current disability. Hensley v. Brown, 5 Vet. App. 155 (1993).

VA regulations do not require hearing loss for VA purposes to be present during service. Rather, hearing loss, if sensorineural in nature, is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.

The Veteran was afforded a VA examination in July 2014. His audiometric evaluation showed normal results. His pure tone thresholds in decibels were as follows: 

HERTZ 	500 	1000 	2000 	3000 	4000 

Right 	25	20	20	35	25

 

The Veteran's speech recognition score was 94 percent for the right ear, utilizing the Maryland CNC word list. After a review of the Veteran's claims file, the examiner noted that the Veteran did have a threshold shift in his right ear during his active-duty service. The examiner provided a positive nexus opinion for bilateral hearing loss. 

The Board acknowledges the positive nexus opinion, provided by the July 2014 VA examiner. However, the Veteran does not have right ear hearing loss for VA purposes; his pure tone thresholds at the enumerated frequencies are all less than 40 decibels, he did not have thresholds for at least three frequencies that were 26 decibels or greater, and his speech recognition score was 94 percent.

The Board acknowledges the Veteran's complaints of hearing loss. He is considered competent to describe his perception of diminished hearing because lay testimony is competent to establish the presence of observable symptoms and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, even to the extent the Veteran would be competent to report diminished hearing, he is not competent to diagnose hearing loss for VA purposes. Although he has described symptoms of right ear hearing loss and has also been provided a positive nexus opinion, the grant of service connection for hearing loss involves the mechanical application of the rating criteria to the findings of official audiometry. Here, the Board must rely on the objective clinical testing, which shows that the Veteran does not have hearing loss for VA purposes, in his right ear, meaning that the issue must be denied as a matter of law. Until the Veteran can show a current diagnosis for right ear hearing loss, service connection cannot be granted. Accordingly, service connection for right ear hearing loss is denied.

In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine.  As the evidence persuasively favors one side or the other, the doctrine is not for application.  See Lynch v. McDonough, 2021 U.S. App. LEXIS 37307 (2021) at *11; 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

6. Service connection for sinusitis is denied.

7. Service connection for gastroenteritis is denied.

8. Service connection for hypertension is denied.

The Veteran asserts that service connection for sinusitis, gastroenteritis, and for hypertension is warranted. However, the Veteran has not explained why service connection is warranted for any of these claimed conditions. 

A review of the Veteran's STRs shows numerous complaints for sinusitis, and shows a diagnosis for gastroenteritis in February 2007. However, there was no indication that the Veteran was treated for or diagnosed with hypertension. In that regard, he was noted to not have hypertension in March and May 2008.  

The Veteran was afforded a VA examination for sinusitis in July 2014. After an in-person examination, the examiner confirmed that the Veteran was diagnosed with chronic sinusitis. After a review of the Veteran's claims file, the examiner provided a negative nexus opinion. The examiner acknowledged the in-service complaints of sinusitis, but found that they were temporary conditions. The examiner explained that there was no x-ray evidence in the STRs, that he developed chronic changes in the sinus cavity, and that the evidence of chronic sinusitis was first shown six years after his separation from the military. 

The Veteran was afforded a VA examination for gastroenteritis in September 2016. The examiner noted an acute episode of gastritis, in 2005. After a review of the Veteran's claims file, and in consideration of the Veteran's lay statements and verbal history, the examiner reported that the Veteran did not have a current diagnosis for a gastrointestinal condition. The examiner explained that the Veteran had an episode of gastroenteritis, which resolved in 2005. Diagnostic testing showed negative results for gastritis or any residuals. 

The Veteran was afforded a VA examination for hypertension in November 2019. The examiner noted that the Veteran was diagnosed with hypertension. After an in-person examination and a review of the Veteran's claims file, the examiner provided a negative nexus opinion. The examiner explained that there was no evidence of in-service treatment for hypertension. The examiner noted that the Veteran started using hypertension medication in 2012, which was many years after his separation from the military. 

Here, the Board points out that the Veteran's representative has not provided any additional argument or evidence regarding sinusitis, hypertension, or gastroenteritis. For example, the representative obtained private medical opinions for the service connection claims for headaches and for OSA, but did not obtain one regarding these conditions.  

To the extent that the Veteran believes that he is diagnosed with gastroenteritis, and that his currently diagnosed sinusitis and hypertension are the result of his active-duty service, such medical opinions require medical expertise, and those determinations cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a diagnosis or a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Congress specifically limited entitlement to service connection for a disease or injury to cases where the disease or injury has resulted in a disability. In the absence of proof of present disability there can be no claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Here, there is simply no evidence contained in his post-service medical records, that suggests he is currently diagnosed with gastrointestinal disorders. 

Here, the Board acknowledges the in-service diagnoses for sinusitis and for gastroenteritis. However, the VA examiners of record have explained that those in-service conditions were acute, and resolved during his active-duty service. Regarding hypertension, the examiner explained that the Veteran was diagnosed with hypertension about four years after his separation from the military. The only competent medical opinions of record, provided by the respective VA examiners, have not found a connection between any of the claimed conditions and the Veteran's active-duty service. 

Here, until the Veteran provides evidence of a current diagnosis for a gastrointestinal condition, that is accompanied by a competent medical opinion that relates the condition to his active-duty service, service connection cannot be granted. Regarding the sinusitis, the Board acknowledges the in-service diagnosis and the current. However, service connection requires a nexus, and the only competent medical professional has opined that there is no nexus. Regarding hypertension and sinusitis, the Veteran must provide a competent medical opinion that relates the conditions to his active-duty service, in order for service connection to be warranted. 

Here, there is not enough positive evidence indicating that service connection is warranted, for any of these claimed conditions. As such the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, service connection for sinusitis, gastroenteritis, and hypertension is denied.

Effective Dates

1. An effective date for the grant of service connection for anxiety, prior to January 27, 2010, is denied.

2. An effective date for the grant of service connection for tinnitus, prior to January 27, 2010, is denied.

3. An effective date for the grant of service connection for a right ankle disability, prior to January 27, 2010, is denied.

4. An effective date for the grant of service connection for left ear hearing loss, prior to January 27, 2010, is denied.

5. An effective date for the grant of service connection for a right tibial fracture, prior to January 27, 2010, is denied.

The Veteran asserts that he is entitled to an earlier effective date for the grant of service connection for anxiety, tinnitus, a right ankle condition, left ear hearing loss, and a right tibial fracture. However, the Veteran, nor his representative, have explained why an earlier date is warranted. 

The general rule for earlier effective dates for service connection provides that if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement will be either the day following separation, or the date entitlement arose. 38 U.S.C. § 5110 (b)(1). Here, there has been no evidence of, nor any assertion that a claim was received within a year of separation from service.

If a claim is not received within a year of separation, VA regulations provide that the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400.

A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101 (a). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998).

Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155 (a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

VA received the Veteran's VA Form 21-526, Application for Compensation or Pension, on January 27, 2010, that included service connection claims for anxiety, tinnitus, a right ankle condition, left ear hearing loss, and a right leg condition. An August 2014 rating decision granted service connection for anxiety, tinnitus, a right ankle disability, left ear hearing loss, and for a right tibial fracture, and assigned an effective date of January 27, 2010, the date of claim, for all the aforementioned claims. 

After a careful review of the Veteran's claims file, the record is absent for statements or assertions indicating a desire to apply for service connection for anxiety, tinnitus, a right ankle disability, left ear hearing loss, or for a right tibial fracture, prior to January 27, 2010. Additionally, the record is absent for a formal application prior to January 27, 2010. A lack of formal or an informal claim indicates the Veteran had no intention to assert a claim for service connection for anxiety, tinnitus, a right ankle disability, left ear hearing loss, or for a right tibial fracture prior to January 27, 2010. The Board emphasizes that neither the Veteran, nor his representative, has stated why he believes he is entitled to an effective date earlier than January 27, 2010. As previously discussed, the Veteran's representative did provide some evidence and argument regarding several of the other issues on appeal, but has not provided any additional argument or evidence regarding any of the earlier effective date claims. 

As noted above, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a). While the Veteran asserts that he is entitled to an earlier effective date, the claims folder reflects that the Veteran expressed his intent to file on January 27, 2010 and he was assigned the date of claim as the effective date. Here, the Veteran has been assigned the earliest possible effective date for his service connection claims for anxiety, tinnitus, a right ankle disability, left ear hearing loss, and for a right tibial fracture. 

Accordingly, an effective date earlier than January 27, 2010, for the grant of service connection for anxiety, tinnitus, a right ankle disability, left ear hearing loss, and for a right tibial fracture, must be denied as a matter of law. 

Increased Ratings

1. An initial rating in excess of 10 percent for tinnitus is denied.

The Veteran is seeking a rating in excess of 10 percent, for tinnitus. The Board notes that a 10 percent rating is the highest schedular rating for tinnitus.

The Veteran is limited to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. Smith v. Nicholson, 19 Vet. App. 63, 78 (2005). Here, the Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. § § 4.87, Diagnostic Code 6260. As such, there is no adequate legal basis upon which to award a higher rating. As a matter of law, a schedular rating for tinnitus in excess of 10 percent is denied.

The Board has considered whether extra-schedular consideration is warranted. However, there is no evidence of, nor has there been any assertion that the Veteran's tinnitus has resulted in any unusual or exceptional functional impairment or loss of functional capacity. The functional difficulties caused by the Veteran's tinnitus appear to be contemplated fully in the defined regulations and by the rating assigned pursuant to the criteria under Diagnostic Code 6260. Moreover, there is no indication that the Veteran's tinnitus has required hospitalization, surgery, or even regular or ongoing outpatient treatment. As such, consideration of an extra-schedular disability rating for the Veteran's tinnitus and referral of this case for such consideration pursuant to 38 C.F.R. § 3.321 (b)(1) are not warranted. Accordingly, an initial rating in excess of 10 percent for tinnitus is denied.

2. An initial compensable rating for hearing loss of the left ear is denied.

The Veteran asserts that he is entitled to a compensable rating for his left ear hearing loss. However, the Veteran, nor his representative, have explained why an increased rating is warranted. 

Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes auditory hearing acuity levels based on average pure tone thresholds and speech discrimination. 38 C.F.R. § 4.85.

Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100.

Hearing tests will be conducted without hearing aids, and the results of testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85, Tables VI, VII. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies of 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. 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 for hearing impairment from Table VI or Table VIA, whichever is higher. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. 

If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. See 38 C.F.R. § 4.85 (f).

An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100.

The Veteran's post-service treatment records have been reviewed, but do not contain the results of any audiometric testing, beyond the July 2010 VA examination. 

The Veteran was afforded a VA examination in July 2010. The audiological examination report showed pure tone thresholds, in decibels, as follows:

HERTZ	1000	2000	3000	4000	Average

Left	25	40	55	35	38.75

The Veteran's Maryland CNC test showed that the Veteran scored 100 percent in his left ear. 

The results of the July 2010 VA audiological evaluation showed an average hearing loss of 39 decibels in the left ear. He had a speech discrimination score of 100 percent in the left ear. Under Table VI, the July 2010 audiological results show that he had a Level I in the left ear. Here, the Veteran is not service-connected for hearing loss in his right ear, and his right ear has been assigned a Level I. See 38 C.F.R. § 4.85. A Level I in the left ear and a Level I in the right ear warrants a noncompensable rating under Table VII. The Board notes that the Veteran has not shown exceptional pattens of hearing impairment. See 38 C.F.R. § 4.86. 

The Board acknowledges that the Veteran has decreased hearing in his left ear. The Board does not doubt that his hearing loss causes him some impairment and is sympathetic towards his claim. Unfortunately, the audiometric results show that the Veteran's hearing loss is noncompensable under the schedular criteria. Here, although the Veteran has shown hearing loss in his left ear, his hearing loss has not risen to a level that VA regulations rate as compensable and the Board is bound by the rigid application of the rating criteria. The Board finds that there is no schedular basis for a compensable rating based on the testing results of record. 

The Board recognizes that the Veteran has not been afforded a VA examination since the July 2010 examination. However, there has been no indication from the Veteran that his hearing has decreased since that last VA examination. Further, there is no indication in the post-service treatment records of deteriorating hearing loss. The Board finds that there has been no pre-decisional duty to assist error, such that remand would be required for a new VA examination. 

Here, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, an initial compensable rating for left ear hearing loss is denied.

3. A 20 percent rating for a right ankle disability is granted.

The Veteran asserts that he is entitled to an initial rating in excess of 10 percent for the service-connected right ankle disability. However, the Veteran, nor his representative, have explained why an increased rating is warranted. 

VA received the Veteran's service connection claim for a right ankle condition on January 27, 2010. A subsequent August 2014 rating decision granted the Veteran service connection and assigned an initial 10 percent rating, effective the date of claim. The Veteran disagreed with the assigned rating and this appeal ensued. 

The Veteran's 10 percent rating is under Diagnostic Code 5010-5271 and is based on painful motion. See 38 C.F.R. § 4.59. Hyphenated Diagnostic Codes are used when a rating under one code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code 5271 applies to limited motion of the ankle. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under Diagnostic Code 5010, traumatic arthritis is rated as degenerative arthritis under code 5003, which provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

With respect to disabilities of the ankle, 38 C.F.R. § 4.71a, Diagnostic Codes 5270 through 5274, set forth relevant provisions. 

Diagnostic Code 5270 evaluates ankylosis of the ankle. The VA examiners of record have not diagnosed ankylosis of the right ankle, the Veteran's post-service treatment records do not suggest the presence of ankylosis, and the Veteran has not described the symptoms of ankylosis. As such, this Diagnostic Code is not applicable and will not be discussed further. 

Diagnostic Code 5272 concerns ankylosis of the subastragalar or tarsal joint of the left ankle. The VA examiners of record have not found a diagnosis for ankylosis of the subastragalar or tarsal joint, and the post-service treatment records do not suggest the presence of ankylosis of the subastragalar or tarsal joint. As such, this Diagnostic Code is not applicable and will not be discussed further.

Diagnostic Code 5273 addresses malunion of the os calcis or astragalus. The medical record documents malunion of the right malleolus; however, there has been no documentation of a malunion of the os calcis or astragalus in either ankle. As such, this Diagnostic Code is not applicable and will not be discussed further. 

Diagnostic Code 5274 evaluates astragalectomy, or removal of the talus bone. The medical record does not document removal of the talus bone in either ankle. As such, this Diagnostic Code is not applicable and will not be discussed further. 

Diagnostic Code 5271 evaluates range of motion in the ankle. A 10 percent rating is assigned for moderate limitation of motion. A 20 percent rating is assigned for marked limitation of motion. 

It is noted that on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. The Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas, the Federal Circuit held that the more favorable regulations should apply to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. Here, the amendments to the rating schedule do not have any retroactive application.

In this case, the revisions to the regulations have a limited impact in that they do not substantively change how the ankle is rated. Rather, the revisions define marked and moderate limitation of motion as it applies to the ankles. Under the revised regulations, marked limitation of motion of the ankle means less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and is rated at 20 percent. Moderate limitation of motion means less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and is rated at 10 percent.

As earlier iterations of the regulations did not define marked or moderate, the Board will adopt these definitions. 

The Veteran was afforded a VA examination in July 2014. The Veteran reported that he did not have flare-ups that impacted the function of the right ankle. On examination, the Veteran showed right plantar flexion to 40 degrees and dorsiflexion to 15 degrees. Pain was noted at 35 degrees for plantar flexion and at 10 degrees for dorsiflexion. The Veteran was able to perform repetitive use testing, with no additional loss, in terms of range of motion. Muscle strength testing showed normal strength of the right ankle, in all planes of motion. There was no evidence of joint instability or ankylosis. 

The Veteran was afforded a VA examination in May 2019. The Veteran reported flare-ups with weather changes, prolonged standing, walking, or any kind of strenuous physical activity. On examination, the Veteran showed right plantar flexion to 10 degrees and dorsiflexion to 5 degrees. Pain was noted on examination, but did not result in functional loss. There was evidence of pain with weight-bearing, but not in non-weight-bearing, and there was pain in both active and passive range of motion. The Veteran was able to perform repetitive use testing, with no additional loss, in terms of range of motion. Based on the Veteran's reports, the examiner opined that there was no significant functional limitation with flare-ups, but noted that there would be a disturbance with locomotion and with standing. Muscle strength testing showed 4/5 strength of the right ankle, in all planes of motion. There was no evidence of joint instability or for ankylosis. 

The Veteran was afforded a VA examination in August 2020. The Veteran reported severe flare-ups a couple times a month. He reported that the flare-ups lasted for a few days. The flare-ups are caused by standing for longer than 15 minutes and any type of high impact activity. On examination, the Veteran showed right plantar flexion to 15 degrees and dorsiflexion to 10 degrees. Pain was noted on examination, but did not result in functional loss. There was evidence of pain with weight-bearing, non-weight-bearing, and in both active and passive range of motion. The examiner opined that during a flare-up, the Veteran's plantar flexion would be limited 5 degrees and his dorsiflexion would also be limited to 5 degrees. Muscle strength testing showed 4/5 strength of the right ankle, in all planes of motion. There was no evidence of joint instability or for ankylosis. 

Here, the Veteran has been shown to have less than 10 degrees of plantar flexion. The August 2020 VA examiner opined that during a flare-up, the Veteran's plantar flexion would be limited to 5 degrees. When functional loss is considered, the criteria are met for the maximum 20 percent rating for the right ankle disability. However, as discussed, the Veteran has not met the criteria for a separate or increased rating, for any of the other Diagnostic Codes related to the ankle. Accordingly, the maximum 20 percent for a right ankle disability under Diagnostic Code 5271 is granted.

4. An initial rating in excess of 10 percent for a right tibial fracture is denied.

The Veteran asserts that he is entitled to a rating in excess of 10 percent for his right tibial fracture. However, the Veteran, nor his representative, have explained why an increased rating is warranted. 

VA received the Veteran's service connection claim for a right tibial fracture on January 27, 2010. A subsequent August 2014 rating decision granted the Veteran service connection and assigned an initial 10 percent rating, effective the date of claim. The Veteran disagreed with the assigned rating and this appeal ensued. 

The Veteran's 10 percent rating for a right tibial fracture is rated under Diagnostic Code 5010-5260. However, this appears to be an error because the August 2014 rating decision assigned the 10 percent rating for malunion of the tibia and fibula, with slight knee or ankle disability. Nonetheless, the Board will look to all of the applicable Diagnostic Codes. 

Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II.

Diagnostic Code 5256 evaluates ankylosis of the knee. The record contains no evidence of right knee ankylosis. As such, this Diagnostic Code is not applicable.

Diagnostic Code 5257 evaluations subluxation and/or lateral instability. A 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. 

Diagnostic Code 5263 evaluates genu recurvatum. The record contains no evidence of genu recurvatum. As such, this Diagnostic Code is not applicable.

Diagnostic Codes 5258 and 5259 evaluate the semilunar cartilage, which is synonymous with the meniscus. The record contains no evidence of meniscal problems. As such, this Diagnostic Code is not applicable.

Under Diagnostic Codes 5260 and 5261 (limitation of knee flexion and knee extension respectively), a noncompensable rating may be assigned where either knee flexion is limited to 60 degrees or knee extension is limited to 5 degrees. A compensable (i.e., at least 10 percent) rating is assigned for either flexion limited to 45 degrees or extension limited to 10 degrees. A 20 percent rating is assigned for either flexion limited to 30 degrees or extension limited to 15 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14.

Diagnostic Code 5262 evaluates impairment of the tibia and fibula. A 10 percent rating is assigned for slight knee or ankle disability, a 20 percent rating is assigned for moderate knee or ankle disability, a 30 percent rating is assigned for marked knee or ankle disability, and a 40 percent maximum rating is warranted for nonunion, with loose motion, requiring brace. 38 C.F.R. § 4.71a.

As previously discussed, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. 

Under the new version of Diagnostic Code 5262, which applies to rating periods commencing February 7, 2021, malunion of the tibia and fibula is to be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, whichever results in the highest evaluation. A maximum 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion, requiring a brace. 

Additionally, under the new version of Diagnostic Code 5262, which applies to rating periods commencing February 7, 2021, Medial tibial stress syndrome (MTSS), or shin splints, is rated as follows: A noncompensable evaluation requires treatment less than 12 consecutive months, one or both lower extremities; a 10 percent evaluation requires treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; a 20 percent evaluation requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A maximum 30 percent evaluation requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities.

The Veteran was afforded a VA examination in July 2014. The Veteran did not report having flare-ups. On examination, the examiner did not indicate the Veteran's flexion, but noted full extension. The Veteran was able to perform repetitive use testing and showed flexion to 130 degrees and full extension. Muscle strength testing showed normal strength, in all planes of motion. There was no evidence of right knee instability. 

The Veteran was afforded a VA examination in August 2020. The Veteran reported having severe flare-ups of the right knee, that occurred a few times a week. The flare-ups were caused by sitting or standing for longer than 15 minutes, kneeling, squatting, climbing stairs, and lifting over 20 pounds. On examination, he showed flexion to 105 degrees, and full extension. The Veteran was able to perform repetitive-use testing, with no additional loss in terms of range of motion. The examiner opined that during a flare-up, the Veteran's flexion would be limited to 95 degrees, with full extension. Muscle strength testing showed normal strength, in all planes of motion. There was no evidence of right knee instability or ankylosis. The examiner noted the presence of shin splints, but also reported that it was hard to tell if the limitation of range of motion was caused by the tibial injury or shin splints. There was no evidence of any meniscal conditions. The examiner indicated that the Veteran did not use any assistive devices. 

Here, the Board finds that the currently assigned 10 percent rating for the right knee disability is appropriate. Regarding a limitation of motion, at worst, the Veteran showed flexion limited to 95 degrees, during a flare-up, which is well in excess of 60 degrees, the criteria for a noncompensable rating. He showed full extension at both VA examinations of record. As such, the Board finds that a separate rating based on a limitation of motion is not warranted.

Turning to Diagnostic Code 5262, under the both the old and new regulations, the Board finds that a rating in excess of 10 percent is not warranted. Under the old regulation, moderate knee or ankle disability has not been shown, or worse. For example, the Veteran has been shown to have flexion limited to 95 degrees, which is about 68 percent of full range of motion. The Board does not believe that retaining well over half of full range of motion in the knee is consistent with a finding of "moderate" disability. Regarding the ankle, the Veteran has already been assigned a separate rating for a limitation of motion in the right ankle. As such, the ankle disability will not be contemplated in the analysis for the right tibial fracture. Under the new regulations, Diagnostic Codes 5256, 5257, 5260, or 5261 have been considered. However, there is no evidence of ankylosis, instability, and the limitation of motion has already been discussed. The August 2020 VA examiner noted that the Veteran had shin splints in his right leg. However, a careful review of the Veteran's post-service treatment records is entirely negative for the treatment of such a condition. As such, the criteria for separate ratings and/or an increased rating under Diagnostic Code 5262 is not warranted. 

Thus, the Board finds that the Veteran's residuals of a right fibula fracture is appropriately rated. Accordingly, a rating in excess of 10 percent for a right tibial fracture is denied.

5. An initial 50 percent rating for anxiety is granted.

The Veteran asserts that he is entitled to a rating in excess of 30 percent for his service-connected anxiety. VA received the Veteran's service connection claim for anxiety on January 27, 2010.  A subsequent August 2014 rating decision granted the Veteran service connection and assigned an initial 30 percent rating, effective the date of claim. The Veteran disagreed with the assigned rating and this appeal ensued. 

The Veteran's anxiety is rated under Diagnostic Code 9413, and his 30 percent rating was based on chronic sleep impairment, anxiety, depressed mood, and occupational and social impairment due to mild or transient symptoms. 

Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned when a Veteran's mental disorder causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411.

A 50 percent rating is assigned when a Veteran's mental disorder causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent evaluation is assigned when a Veteran's mental disorder causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships. Id.

A 100 percent rating is assigned when a Veteran's mental disorder causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118.

Based on the evidence of record, the Board finds that the Veteran's anxiety symptoms resulted in occupational and social impairment with reduced reliability and productivity, thus warranting an initial 50 percent rating, from January 27, 2010.

The Veteran was afforded a VA examination in July 2014. The Veteran reported that he had an "on and off" relationship with his girlfriend. He reported that they were going to couples counseling because they just got back together and had a very volatile relationship. The Veteran reported that he had a 12-year-old daughter and maintained contact with her. He also reported that he had awesome familial relationships, until a year and a half ago when his family became disappointed that he did not finish school. He reported that he recently became homeless, and had been living with different friends. Regarding his education and occupational history, the Veteran reported that he started nursing school in 2010. However, he had difficulty passing the final nursing examination, and as a result went to work with his father, as a landscaper. The examiner noted that the Veteran was diagnosed with anxiety disorder, attention deficit hyperactive disorder (ADHD), opiate use disorder, and adjustment disorder. The examiner found that the best summary of the Veteran's level of impairment was occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or when symptoms are controlled by continuous medication, a finding consistent with a 10 percent rating. The examiner noted that the Veteran's mental health symptoms were depressed mood, anxiety, chronic sleep impairment, mild memory loss, and impaired judgment. 

The Veteran provided an examination report from a private psychiatrist in October 2018. The psychiatrist noted the diagnoses for anxiety disorder, ADHD, and opiod use disorder. The psychiatrist found that the best summary of the Veteran's level of impairment was occupational and social impairment, with deficiencies in most areas, a finding consistent with a 70 percent rating. The psychiatrist reported that the Veteran was never married and noted that he had difficulty establishing and maintaining intimate relationships. The Veteran reported that he stayed at home most of the time, was anxious, panicky, and agitated in social situations, and avoided crowds. The psychiatrist noted that the Veteran had the following symptoms: depressed mood, anxiety, suspiciousness, near continuous panic, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, an inability to establish and maintain effective relationships, neglect of personal appearance, and an intermittent inability to perform activities of daily living. The psychiatrist noted a review of the relevant medical records, which included mental health treatment notes, and SSA records. The psychiatrist noted symptoms such as frustration, insomnia, varied energy, sleep difficulty, irritability, hypervigilance, anxiety attacks, delusions, paranoia, that he received a service dog for anxiety, psychomotor agitation, feelings of hopelessness; and reports from the Veteran such as, having extreme difficulty with his mental health symptoms, difficulty with girlfriends, and not liking to go out into public.

The Board has carefully reviewed the Veteran's post-service treatment records and confirms that all of the treatment records that were relied upon by the private psychiatrist, in providing their medical opinion, were obtained and accurately reported. 

Here, the Board finds that the Veteran has met the criteria for an initial 50 percent rating. For example, he has been shown to have a flattened affect, memory impairment, impaired judgment, disturbances of motivation and mood, and a difficulty in establishing and maintaining effective work and social relationships, all symptoms associated with a 50 percent rating, under Diagnostic Code 9413. Further, he has shown symptoms such as delusions, paranoia, and feelings of hopelessness, which are symptoms typically contemplated by higher ratings. 

Regarding a difficulty with effective relationships, the Veteran has shown that he has difficulty with many of them. For example, he has had a well-documented history of difficulty with girlfriends. He also reported during the period on appeal that his family was disappointed with him because he did not finish school, which caused those relationships to become strained. He did report having active contact with his daughter. He also reported having friends; however, the Board points out that this was in the context of him being homeless, when he needed places to stay. Other than the report of staying with various friends while being homeless, the evidence of record otherwise does not show that the Veteran had many friends during the period on appeal. Here, the Board is satisfied that the Veteran has shown a difficulty with establishing and maintaining effective relationships. However, given that he still has some relationship with some family members and worked with his father for many years; the evidence does not show that he had an inability to establish and maintain effective relationships, as noted by the private psychiatrist. 

During this period on appeal, there does not appear to be any reported suicidal ideation, but he was reported to have near continuous panic, neglect of personal appearance, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. However, a review of the contemporaneous evidence of record, VA mental health treatment notes from March 2018 to November 2018, or at any other time, does not show any complaints of near continuous panic or depression. Further, he was never reported to have a neglect of personal appearance and hygiene. 

That said, the Board finds that the criteria for a higher rating of 70 or 100 percent is not warranted at any point during this period on appeal. In this regard, the available lay and medical evidence indicate that the Veteran has maintained relationships with some family members, albeit with some difficulty, and has continued to pursue an education. Although the Veteran's anxiety symptoms cause him difficulty with some relationships, they have not caused an inability to establish and maintain effective relationships or total impairment. Further, he has not otherwise endorsed symptoms that would cause deficient or total impairment in his social or occupational functioning. While the Veteran need not suffer from all of the enumerated symptoms in the rating criteria to establish entitlement to a higher rating, the symptoms he does have must cause the corresponding level of social and occupational impairment of the higher ratings, which has not been demonstrated in this case. 

Accordingly, the Board finds that a rating of 50 percent, but no higher, from January 27, 2010, is warranted for the Veteran's anxiety. 

6. TDIU

The Veteran asserts that he is entitled to a TDIU as a result of his service-connected disabilities. 

During the pendency of the increased rating claims for anxiety, tinnitus, a right ankle disability, left ear hearing loss, and a right tibial fracture, the Board has received evidence indicating that the Veteran is unemployed due to his service-connected disabilities. As such, the Board takes jurisdiction of the issue of entitlement to a TDIU, from January 27, 2010, because it is part and parcel to the issues on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). 

Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001).

Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. 

Here, service connection is in for the following disabilities: allergic rhinitis rated at 30 percent, from January 27, 2010; a right tibial fracture rated at 10 percent, from January 27, 2010, tinnitus rated at 10 percent, from January 27, 2010; hearing loss in the left ear rated as noncompensable; and a right tibial scar rated as noncompensable. This Board decision also increased the Veteran's rating for a right ankle disability, from 10 percent to 20 percent, and anxiety from 30 percent to 50 percent, effective January 27, 2010. Here, the Veteran meets the schedular requirements for a TDIU, as of January 27, 2010, for the entire period on appeal. 

The Veteran was afforded numerous VA examinations for his service-connected disabilities, during the period on appeal. However, most of those examinations were done in the context of service connection and the respective VA examiners of record did not provide any insight into whether a service-connected disability had any impact on his ability to work. Here, only the July 2014 VA examiner for hearing loss and tinnitus; the May 2019 VA examiner for the right ankle, and the September 2020 VA examiner for the right knee provided such opinions. The July 2014 VA examiner reported that the Veteran's left ear hearing loss and tinnitus would not have any impact on his ability to work. The May 2019 VA examiner indicated that the Veteran's right ankle disability would restrict prolonged exertion, an avoidance of prolonged standing, walking, or any kind of strenuous physical activity, and no heavy lifting or heavy carrying. The September 2020 VA examiner reported that the Veteran's right tibial fracture would cause difficulty with sitting for longer than 15 minutes, walking longer than 15 minutes, kneeling, squatting, climbing stairs, and lifting over 20 pounds. 

The Veteran provided an employability review from the private psychiatrist who provided the mental health assessment, in October 2018. The psychiatrist reported that the Veteran could not sustain the stress from a competitive work environment or be expected to engage or adequately function in gainful work activity, due to his anxiety disorder. The psychiatrist noted that the Veteran's anxiety, depressed and irritable moods would increase his likelihood of being emotionally reactive, causing more frequent panic attacks, flat affect, persistent negative attitude, being unmotivated, having low energy, and a lack of interest in work, which could lead to conflicts with co-workers and supervisors. His chronic sleep impairment would cause irritability, low energy, and difficulty with concentrating on tasks. The Veteran's anxiety, panic attacks, anger outbursts, chronic fatigue would cause him difficulty in adapting to stressful circumstances because he would get overwhelmed with task directives and increased workloads. His difficulty in establishing and maintaining effective relationships would also cause difficulty because he would not be able to effectively communicate with others, and cause him to isolate. 

It is ultimately a rating consideration as to whether the Veteran is able to obtain or maintain substantially gainful employment; here, the Board resolves reasonable doubt in favor of the Veteran and finds that the medical evidence of record in this case suggests that the Veteran has been so functionally limited by his service-connected disabilities as to be unable to obtain or maintain substantially gainful employment, consistent with his education and occupational experience. 

The Board acknowledges the VA medical opinions that weigh against the Veteran's claim for a TDIU, as they were provided after the examiners had an opportunity to interview the Veteran, review his record, and conduct physical examinations of the Veteran. However, the Board also acknowledges the private medical opinion of the private psychiatrist, who opined that the Veteran's service-connected anxiety, alone, was severe enough to preclude gainful employment. Here, there is both positive and negative evidence regarding the Veteran's employability. However, the Board affords the private psychiatrist's opinion great probative weight because he had a chance to interview the Veteran and review his claims file. Further, he also provided a robust and well-reasoned rationale to support his medical opinion; he provided great insight into how the anxiety caused the Veteran the inability to secure and maintain substantially gainful employment. Here, the Board finds that his service-connected disabilities, in conjunction with one another, preclude the Veteran from obtaining or maintaining substantially gainful employment, consistent with his education and occupational experience. 

Here, the Veteran's right ankle and right tibial fracture have been found to cause substantial physical impairment; he has difficulty with sitting for longer than 15 minutes, walking longer than 15 minutes, and cannot lift or carry heavy objects. His anxiety has been shown to cause significant impairment. The Board finds that the Veteran's service-connected disabilities, in conjunction with one another, have caused the Veteran the inability to secure and maintain substantially gainful employment. 

The Board has also considered the Veteran's educational background and training. The Veteran reported during the period on appeal that he was not able to finish his nursing degree because he could not pass the final test, on multiple occasions. His VA mental health treatment records from 2018, showed that after nursing school, he started to pursue a career in music, as a producer; he reported in July 2018 that he was taking on new clients, pro bono, to improve his production skills. The treatment records also show that he worked full time for his father's landscaping business.  

Here, the evidence of record shows that the Veteran has difficulty in taking tests, as shown by his inability to become a nurse. In response, the Veteran has attempted to work from home, as a music producer. At other times, he worked for his father, as a landscaper. The Board finds that the Veteran's experience as a music producer and a landscaper is consistent with sheltered employment. The Veteran reported working for his father, which means that he likely received favorable treatment and was not expected to perform at a level a normal employee would be expected to. Regarding his work as a music producer, the record of evidence suggests that he was doing this pro bono, to gain experience. There is no indication that the Veteran has started to earn any money as a music producer. 

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In light of the whole record, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board has considered the Veteran's education and his primary employment history as a former nursing student, a landscaper, and music producer, and his level of disability due to his service-connected disabilities. As explained by the private psychiatrist, his anxiety symptoms precluded all types of employment, and his right ankle and right knee disabilities have been shown to affect his ability to sit, walk and stand, which would affect his ability to perform both physical and non-physical type jobs. 

Accordingly, TDIU is warranted effective January 27, 2010.

 

 

J. Kirby

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Fu, 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.