Citation Nr: 18160580
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-52 746
DATE:	December 27, 2018
ORDER
Entitlement to an initial evaluation in excess of 10 percent for service-connected bilateral tinnitus is denied.
REMANDED
Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to in-service exposure to mustard gas, is remanded.
Entitlement to service connection for hypertension is remanded.
Entitlement to service connection for residuals of cold injuries of the upper and lower extremities is remanded.
Entitlement to service connection for a bilateral foot disability other than cold injury residuals is remanded.  
Entitlement to service connection for hepatitis C is remanded.
Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) Major Depressive Disorder, alcohol dependence, and polysubstance abuse, to include as due to an in-service personal assault, is remanded.
Entitlement to an initial evaluation in excess of 10 percent for service-connected bilateral hearing loss is remanded.
Entitlement to an initial compensable evaluation for a service-connected left forearm scar associated with in-service mustard gas exposure is remanded.
Entitlement to an initial compensable evaluation for service-connected residuals of a skin infection of the left foot is remanded.
Entitlement to a temporary total evaluation based on in-patient VA hospital treatment or observation in excess of 21 days for a service-connected disability under 38 C.F.R. § 4.29 is remanded.
Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
FINDING OF FACT
The Veteran's service-connected bilateral tinnitus is assigned a 10 percent evaluation, the maximum schedular evaluation provided by Diagnostic Code 6260.
CONCLUSION OF LAW
There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for service-connected bilateral tinnitus. 38 U.S.C. §1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Army from January 1969 to January 1971 and had additional service of an unknown nature in the Army Reserve until January 1974.
This matter comes before the Board of Veterans’ Appeals (Board) from a June 2014 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  The Veteran expressed disagreement with this determination in a timely fashion, and the present appeal ensued.  
Characterization of issues on appeal
During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) developed and adjudicated the Veteran’s claims to establish service connection for PTSD and depression separately.  However, the Board has merged these issues and recharacterized them as stated on the title page to more accurately reflect the multiple psychiatric diagnoses and reported symptoms throughout the pendency of the appeal.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  
In a March 2015 rating decision, the AOJ readjudicated the issues of entitlement to service connection for a bilateral foot disability and entitlement to TDIU even though they were already on appeal, the latter under the United States Court of Appeals for Veteran’s Claims’ (the Court’s) holding in Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  However, this readjudication has no impact on the Board’s current jurisdiction of these issues.  
As the record reflects that the Veteran experiences distinct orthopedic and neurologic symptoms affecting his feet, the issues pertinent to his feet have been recharacterized as stated on the title page to accurately reflect the Veteran’s assertions concerning these separate manifestations.  
During the pendency of the appeal, the AOJ developed and adjudicated the issues seeking to establish service connection for an acquired psychiatric disability and entitlement to a total temporary evaluation based on in-patient VA hospitalization in excess of 21 days under 38 C.F.R. § 4.29 together, as the hospitalization was due to the Veteran’s psychiatric symptoms.  Although these issues are certainly intertwined, the Board has bifurcated the issue certified by the AOJ because they are distinct claims.  
As the Board is remanding all of the issues subject to the above-noted recharacterizations, the Veteran is not prejudiced by the Board’s actions in this regard.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  
1. Entitlement to an initial evaluation in excess of 10 percent for service-connected bilateral tinnitus
In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the Court held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus.  VA appealed this decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases affected by the Smith decision.  In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25 (b) and Diagnostic Code 6260, which limit a veteran to a single evaluation for tinnitus, regardless whether the tinnitus is unilateral or bilateral.
The Veteran's service-connected bilateral tinnitus has been assigned the maximum schedular evaluation available under Diagnostic Code 6260.  38 C.F.R. §4.87, Diagnostic Code 6260.  As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, the Veteran's appeal must be denied.  In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Therefore, the Veteran's appeal for an increased initial evaluation for service-connected bilateral tinnitus is denied.
REASONS FOR REMAND
1. Entitlement to an initial evaluation in excess of 10 percent for service-connected bilateral hearing loss is remanded.
2. Entitlement to an initial compensable evaluation for a service-connected left forearm scar associated with in-service mustard gas exposure is remanded.
3. Entitlement to an initial compensable evaluation for service-connected residuals of a skin infection of the left foot is remanded.
The Veteran was most recently provided VA examinations to discern the frequency and severity of the symptoms associated with his service-connected scar, skin disability, and bilateral hearing loss in April 2014 and June 2014, respectively – more than four years ago.  Based on VA treatment records and lay testimony from the Veteran reflecting worsening of hearing acuity and skin symptoms, the Board concludes that these issues must be remanded in order to provide the Veteran updated VA examinations.  
4. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to in-service exposure to mustard gas, is remanded.
5. Entitlement to service connection for hypertension is remanded.
6. Entitlement to service connection for residuals of cold injuries of the upper and lower extremities is remanded.
7. Entitlement to service connection for a bilateral foot disability other than cold injury residuals is remanded.  
8. Entitlement to service connection for hepatitis C is remanded.
The record before the Board includes diagnoses of bilateral pes planus, hepatitis C, hypertension, COPD, and the Veteran’s competent and credible reports of burning, pain, and numbness in his arms and legs.  Further, the Veteran’s service records reflect that he was stationed in Alaska from October 1969 to February 1970, reported dyspnea at his separation examination, was likely inoculated with an air gun injector during service, and was exposed to mustard gas during his service at Fort McClellan. 
In light of above, the Board concludes that VA’s low threshold to provide the Veteran appropriate VA examinations to determine the nature and etiology of his claimed disabilities has been triggered.  
9. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) Major Depressive Disorder, alcohol dependence, and polysubstance abuse, to include as due to an in-service personal assault, is remanded.
The Board concludes that the June 2016 VA psychiatric examination is inadequate for the purpose of readjudicating this issue, and thus, a remand is necessary.  Specifically, the examination report contains contradictory statements from the examiner concerning whether or not behavioral markers indicating PTSD due to military sexual assault are present despite an October 1970 Article 15 for failure to report for guard duty and several statements from the Veteran’s family members which detail changes in his personality and behavior since the entering active duty.  In light of above, the Board concludes that the examiner’s speculative opinion concerning whether the alleged in-service assault took place was based on an inaccurate factual premise.
Accordingly, the issue must be remanded to provide the Veteran another psychiatric examination and obtain adequate opinions concerning the alleged in-service assault and the nature and etiology of his psychiatric disabilities.  
To ensure that the VA examiners are fully apprised of the Veteran’s complete disability picture, update VA and private treatment records should be sought, obtained, and associated with the file.  
10. Entitlement to a temporary total evaluation based on in-patient VA hospital treatment or observation in excess of 21 days for a service-connected disability under 38 C.F.R. § 4.29 is remanded.
11. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
The Board must defer readjudication of the issues seeking to establish TDIU and a temporary total evaluation at this time, as they are dependent on, and intertwined with, other issues being remanded.  
The matters are REMANDED for the following actions:
1. The AOJ must obtain and associate with the file all updated records of VA treatment from the VA Hudson Valley Healthcare System, and all associated facilities, dated after April 14, 2016.  
2. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated him for the disabilities subject to this remand.  
After securing appropriate release(s) from the Veteran, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile.  The Veteran must be notified of the results of the record requests.  If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e).  
3. Thereafter, the AOJ must request that the Veteran be scheduled for a VA audiological examination, to include pure tone audiometry testing and a controlled speech discrimination test using the Maryland CNC word list. Auditory thresholds in decibels, for the right and left ears, for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and speech recognition scores, for the right and left ears, using the Maryland CNC word list, must be provided.  The examiner must provide findings as to the impact of the Veteran's bilateral hearing loss disability on his daily functioning.  The claims folder must be made available for review by the examiner in conjunction with the examination. 
The examiner is also requested to comment on the impact of the Veteran’s service-connected bilateral hearing loss (alone and in concert with his other service-connected disabilities) on his employability.  
If the examiner finds that the testing results are unreliable or otherwise not valid for rating purposes, he/she must state the reasons for this conclusion, citing specific examples and testing results.
To the extent possible, the examiner is requested to differentiate between the functional impairment associated with the Veteran's bilateral hearing loss disability as opposed to his tinnitus.
If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question.  
4. Thereafter, the AOJ must request that the Veteran be scheduled for a VA skin/scars examination to evaluate his service-connected left forearm scar and residuals of a skin infection of the left foot.  The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination.  All necessary studies and tests should be conducted.  The examiner must describe the frequency and severity of the manifestations of the Veteran's service-connected left forearm scar and residuals of a skin infection of the left foot.
The examiner is also requested to comment on the impact of the Veteran’s service-connected left forearm scar and residuals of a skin infection of the left foot (alone and in concert with his other service-connected disabilities) on his employability.  
If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question.
5. Thereafter, the AOJ must request that the Veteran be scheduled for a VA psychiatric examination to determine the nature and etiology of any acquired psychiatric disability present during the appeal period.  The complete record, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner.  Any and all appropriate tests and studies should also be performed and all clinical findings should be reported in detail.  Based on a review of the evidence of record and an interview and examination of the Veteran, the examiner should address the following: 
a.  Identify all acquired psychiatric disabilities present during the appeal period.  
*If diagnoses of PTSD and/or Major Depressive Disorder are ruled out, such a finding must be reconciled with the evidence within the appeal period providing such a diagnosis.
b.  Review the historical records for evidence that might reflect that the claimed personal assault actually occurred during military service.  In performing such review, the examiner must clearly identify the particular records which are felt to provide corroboration of the incident, and must give an adequate rationale for why it is felt that such records establish that a personal assault actually occurred during military service. 
c.  If PTSD is diagnosed, the examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s) and must specifically address whether the identified stressors are adequate to support a diagnosis of PTSD; and whether his symptoms are related to the identified stressors.
d.  For each diagnosed acquired psychiatric disability other than PTSD identified in part (a), provide an opinion concerning whether such is proximately due to or the result of the Veteran’s service, to include any in-service event, or injury, or stressor – if verified. 
In providing the requested opinions, the examiner should cite to specific evidence supporting the conclusions reached. 
If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question.  
6. Thereafter, the AOJ must request that the Veteran be scheduled for appropriate VA examination(s) to determine the nature and etiology of his claimed bilateral foot disability, hepatitis C, hypertension, COPD, and residuals of cold injuries of the upper and lower extremities.  The complete record, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner.  Any and all appropriate tests and studies should be performed and all clinical findings should be reported in detail.  Based on a review of the evidence of record and an interview and examination of the Veteran, the examiner(s) should address the following: 
a.  Identify or rule out the following disabilities:
i.  COPD;
ii.  Hepatitis C;
iii.  Pes planus and any thither foot disability;
iv.  Hypertension;
v.  Cold injury residuals affecting the Veteran’s arms, legs, hands, and/or feet.
b.  For each disability identified in part (a), provide an opinion concerning whether such is proximately due to or the result of the Veteran’s service, to include any in-service event or injury. 
*In providing the requested opinions, the examiner is on notice that the evidence of record reflects that the Veteran was stationed in Alaska from October 1969 to February 1970, was likely inoculated with an air gun injector during service, was exposed to mustard gas during his service at Fort McClellan, and reported experiencing dyspnea on his separation examination.  
In providing the requested opinions, the examiner should cite to specific evidence supporting the conclusions reached. 
If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question.  
7. Thereafter, the AOJ must undertake any development necessary to readjudicate the Veteran’s appeal seeking to establish TDIU, to include information surrounding the Veteran’s educational and occupational history and/or requesting additional examination and opinions.  
8. Thereafter, the AOJ must readjudicate the issues remaining on appeal.  If any benefit is not granted to the fullest extent requested, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and afforded the applicable opportunity to respond before the record is returned to the Board for further review.  

 
Michael J. Skaltsounis
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Scott W. Dale, Counsel 

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