Citation Nr: 18123929
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 14-32 272
DATE:	August 7, 2018
ORDER
Entitlement to a disability rating in excess of 10 percent for tinnitus is denied.
REMANDED
Service connection for a low back disability is remanded.
Service connection for a heart disability is remanded.
Service connection for hypertension is remanded.
Entitlement to an initial compensable rating for bilateral sensorineural hearing loss is remanded.
Entitlement to an initial compensable rating for hemorrhoids is remanded.
FINDING OF FACT
The Veteran’s service-connected tinnitus is already assigned the maximum schedular rating authorized under Diagnostic Code 6260.  
CONCLUSION OF LAW
There is no legal basis for the assignment of a schedular rating in excess of 10 percent for tinnitus.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.87, Diagnostic Code 6260 (2017).  
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the Navy from August 1964 to January 1984, including service in the Vietnam War.  This matter is on appeal from April 2011 and September 2011 rating decisions.  
In his September 2014 substantive appeal (VA Form 9), the Veteran contended that, because he could “give graphic details of these medical issues,” he believed that “many of the VA medical exams were not thorough.”  The Veteran did not specify which of his tinnitus examinations he believed to be inadequate or in what way he believed any of his examinations to be inadequate.  Without that information, there is no specific contention for the Board to address.  
Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
1. Tinnitus 
The Veteran contends that his tinnitus warrants a higher rating than that currently assigned.  It is currently rated under 38 C.F.R. § 4.87, Diagnostic Code 6260, with a 10 percent rating on and after March 26, 2010.  
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 (2017).  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.  
“Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection.  Fenderson v. West, 12 Vet. App. 119 (1999).  
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.  
Diagnostic Code 6260 pertains to recurrent tinnitus and provides for only one rating: 10 percent.  38 C.F.R. § 4.87, Diagnostic Code 6260.  The Veteran’s tinnitus has been assigned that rating throughout the period on appeal.  Because the Veteran’s tinnitus has been assigned the maximum schedular rating throughout the period on appeal, the Board finds there is no legal basis upon which to award a higher schedular evaluation for tinnitus.  As such, entitlement to a rating for tinnitus in excess of 10 percent is not warranted on a schedular basis.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  
REASONS FOR REMAND
1. Service connection for a low back disability is remanded.
The Veteran was afforded a VA examination in November 2010 and the examiner opined that the Veteran had “no clinical or objective findings to support a diagnosis of chronic back disability upon examination today” despite diagnosing mild anterolisthesis of L4-5 with minimal disc space narrowing earlier in the examination report and noting private treatment records diagnosing spinal stenosis.    A medical opinion based on an inaccurate factual premise has limited, if any, probative value.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993).  For this reason, a remand is warranted to obtain an additional examination. 
2. Service connection for a heart disability is remanded.
A December 2010 VA treatment record notes the Veteran’s contention that he was exposed to herbicides during his active duty service.  VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed.  38 C.F.R. § 3.307(a)(6)(iii) (2017).  Certain diseases are deemed associated with herbicide exposure under current law.  The list of those diseases includes ischemic heart disease, including coronary artery disease.  38 C.F.R. § 3.309(e) (2017).  A May 2008 CT scan of the Veteran’s chest noted atherosclerotic vascular calcification including coronary artery disease.  
The Veteran served during the Vietnam Era.  The Veteran’s January 1984 Certificate of Release or Discharge From Active Duty (DD Form 214) notes that the Veteran’s decorations included the Vietnam Service Medal and the Vietnam Campaign Medal, as well as the Combat Action Ribbon.  However, the rest of the Veteran’s service personnel records, including the DD Form 214 for the period including his service in the Vietnam War, have not been associated with the claims file.  On remand, the Agency of Original Jurisdiction (AOJ) should attempt to obtain those records to determine whether the Veteran was presumptively exposed to herbicides.  
3. Service connection for hypertension is remanded.
Hypertension is not on the list of diseases deemed associated with herbicide exposure under current law.  38 C.F.R. § 3.309(e).  However, a claimant is not precluded from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  In other words, the fact that a veteran does not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a direct basis.
The National Academy of Sciences (NAS) has placed hypertension in the category of “limited or suggestive evidence of an association” with exposure to herbicides. See e.g., Health Effects Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540, 32,549 (June 8, 2010) (“In Update 2006, NAS concluded that there was ‘limited or suggestive evidence of an association between exposure to the compounds of interest and hypertension.’“); Health Outcomes Not Associated With Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81,332, 81,333 (December 27, 2010) (NAS, in 2008, categorized certain health outcomes, including hypertension, to have “‘limited or suggestive evidence of an association.’ This category is defined to mean that evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.”).  This was reiterated again in Update 2010.  See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926 (Aug. 10, 2012).  This information meets the low threshold established in McLendon v. Nicholson, 20 Vet. App. 79 (2006), for it is considered an indication that a condition may be associated with service.  
If the AOJ finds that the Veteran was exposed to herbicides, an examination is therefore warranted as to the possibility of service connection, notwithstanding the presumptive regulations.
4. Entitlement to an initial compensable rating for bilateral sensorineural hearing loss is remanded.
The Veteran was last afforded a VA examination for his service-connected bilateral sensorineural hearing loss in October 2010, nearly eight years ago.  The record thus raises the possibility that the Veteran’s service-connected bilateral sensorineural hearing loss could now be more severe than the October 2010 examination report reflects.  “Where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted.”  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  
5. Entitlement to an initial compensable rating for hemorrhoids are remanded.
The Veteran was last afforded a VA examination for his service-connected hemorrhoids in April 2011, more than seven years ago.  The record thus raises the possibility that the Veteran’s service-connected hemorrhoids could now be more severe than the April 2011 examination report reflects.  “Where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted.”  Id.  
The matters are REMANDED for the following action:
1. Obtain any outstanding service personnel records, including any DD Form 214 for the Veteran’s service prior to March 1974.  Make as many requests as are necessary to obtain relevant records and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile.  All negative responses must be documented.  If no records are available, the claims folder must indicate this fact and the Veteran should be notified.
2. Schedule the Veteran for an examination with an appropriate clinician for his low back disability.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.
The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a low back disability, including spinal stenosis, that began during active service or is related to an incident of service.
Although an independent review of the claims file is required, the Board calls the examiner’s attention to the Veteran’s May 1971, April 1977, and August 1979 service treatment records regarding pain in the thoracolumbar spine and private treatment records diagnosing spinal stenosis.   
The rationale for any opinion expressed should be provided.  If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 
3. If, and only if, the AOJ determines that the Veteran was exposed to herbicides, provide the claims file to an appropriate clinician to provide an opinion regarding his hypertension.  The entire claims file and a copy of this remand must be made available to the examiner for review.  An examination of the Veteran is only necessary if deemed so by the clinician.  
The clinician must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has hypertension that began during active service or is related to an incident of service, including exposure to herbicides.
The clinician is advised that service connection can be established due to herbicide exposure by direct proof of causation, and that it is insufficient to conclude that there is no direct causation simply because hypertension is not on the list of diseases and conditions that are presumptively associated with exposure to herbicide agents. 
The clinician must provide all findings, along with a complete rationale for his or her opinions in the examination report. 
If the above requested opinion cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. 
4.  Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his bilateral sensorineural hearing loss.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must acknowledge receipt and review of these materials in any reports generated.
The examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of any symptoms of bilateral sensorineural hearing loss. 
A complete rationale for any opinion expressed must be provided.  If the examiner is unable to provide any requested opinion, that fact must be stated and the reasons why an opinion cannot be provided must be explained. 
5.  Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his hemorrhoids.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.
The examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of any symptoms of hemorrhoids.
A complete rationale for any opinion expressed must be provided.  If the examiner is unable to provide any requested opinion, that fact must be stated and the reasons why an opinion cannot be provided must be explained. 
(Continued on the next page)
 
6.  Readjudicate the claims.  If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.
 
D. Martz Ames
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Ryan Frank, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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