Citation Nr: 1823367
Decision Date: 04/20/18 Archive Date: 04/26/18

DOCKET NO. 14-27 827 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1. Entitlement to service connection for a bilateral hearing loss disability.

2. Entitlement to service connection for tinnitus.

3. Entitlement to service connection for sleep apnea, to include as secondary to the Veteran's service-connected sinusitis.

4. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected major depressive disorder and sinusitis.

5. Entitlement to service connection for Crohn's disease (colitis), to include as secondary to service-connected major depressive disorder.

6. Entitlement to an initial rating in excess of 30 percent for major depressive disorder (claimed as depression), as secondary to service-connected chronic obstructive pulmonary disease (COPD).

7. Entitlement to an initial rating in excess of 10 percent for sinusitis, as secondary to service-connected chronic obstructive pulmonary disease (COPD).

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. Tunis, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1983 to August 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In January 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing located at the RO in St. Petersburg, Florida.

The Board notes that additional evidence has been added to the record since the last issuance of the Supplemental Statement of Case in December 2013. However, this matter is properly before the Board and does not require a remand to the Agency of Original Jurisdiction (AOJ) for initial consideration because at the January 2018 Travel Board hearing, the Veteran testified that he waived his right to have the additional evidence referred to the agency of original jurisdiction.

The Board has reviewed the Veteran's records maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS).

The issues of entitlement to service connection for sleep apnea, for GERD, and for Crohn's disease (colitis) are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. The Veteran is competent to report having experienced hearing loss since service, and credibly reported such hearing loss.

2. The Veteran is competent to report having experienced tinnitus since service.

3. For the entire period on appeal, the Veteran's sinusitis is characterized by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.

4. For the entire period on appeal, the Veteran's major depressive disorder was manifested by occupational and social impairment with reduced reliability and productivity, with symptoms of daily depression, irritability, low motivation, lack of energy, feelings of hopelessness, crying episodes, difficulty concentrating, difficulty sleeping, and suicidal ideations.

CONCLUSIONS OF LAW

1. A bilateral hearing loss disability was incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).

2. Tinnitus was incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

3. For the entire period on appeal, the criteria for a 30 percent disability evaluation for sinusitis have been met. 38 U.S.C. §§ 1154 (a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.97 Diagnostic Codes 6522-6513 (2017).

4. For the entire period on appeal, the criteria for an increased disability rating of 50 percent are met for the Veteran's service-connected major depressive disorder. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9400, 9434 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Given that the Board is granting service connection for a bilateral hearing loss disability and for tinnitus, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Similarly, as will be discussed further below, the Board is granting in full the Veteran's claims for an increased initial rating for major depressive disorder and sinusitis, as the Veteran has requested an increased rating of 50 percent and 30 percent, respectively. See January 2018 Travel Board hearing transcript. Therefore, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II. Service Connection

Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d).

Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3).

If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Veteran contends he is entitled to service connection for bilateral hearing loss disability and tinnitus. For the reasons stated below, the Board finds that service connection for a bilateral hearing loss disability and tinnitus are warranted.

A. Bilateral Hearing Loss

As required under the first prong of Shedden, medical evidence of record indicate a current bilateral hearing loss disability.

Medical diagnosis of hearing loss disability is measured with a numerical criteria as defined by pertinent VA regulation. With respect to claims for service connection for hearing loss, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The Veteran was last afforded a VA examination in July 2013. The July 2013 VA audiology examination produced the following results:

HERTZ

500
1000
2000
3000
4000
LEFT
10
10
20
35
45
RIGHT
10
15
15
40
50
The Veteran's July 2013 VA examination also returned speech recognition scores of 96 percent for the right ear's Maryland CNC Test and 98 percent for the left ear's Maryland CNC Test.

Given that the auditory threshold for the frequencies of 3000 and 4000 Hertz in the right ear measured 40 decibels or greater, and the auditory threshold for the frequency of 4000 Hertz in the left ear measured 40 decibels or greater, the Board finds that the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385.

As to the second prong of Shedden, in-service incurrence or aggravation of a disease or injury, the Board finds the Veteran to be a reliable historian of his experiences and noise exposure in service. See Jandreau, 492 F.3d at 1377. At the January 2018 Travel Board hearing, the Veteran testified that his hearing loss began in service as a result of working close to a jet engine retest facility. The Veteran asserts that the jet engine retest facility caused loud noise and was located approximately 70 years from his office window.

The record also contains a buddy statement from R. R. D., who states that the he worked alongside the Veteran in close proximity to a test and training facility that operated jet-turbine power units about 50 to 75 yards away. R. R. D. asserts that "[s]taff and personnel entering and exiting the south entrance to the building (where the primary staff entrance was located), were repeatedly exposed to intense, hazardous noise of sufficient magnitude to cause personal discomfort." R. R. D. further states that "Lt. Meier worked on the second floor of the facility and utilized the same parking area as I did. I witnessed his exposure to this hazardous noise repeatedly on countless occasions during the course of my employment there as a counselor."

The Board notes that the VA and the Veteran have not been able to confirm the testing and location of the jet engines in close proximity to the Veteran during service. However, after consider the Veteran's testimony and the lay statement of record, the Board finds that the evidence is at least in equipoise, and the Board resolves any reasonable doubt in the Veteran's favor. Furthermore, the Board finds the Veteran to be a reliable historian as to his report of in-service noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the Board credits the Veteran's statements and concedes in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303.

Addressing the third prong of Shedden, nexus between the current disability and conceded in-service noise exposure, the Board considers the medical opinions and the lay testimonies provided in the record.

The July 2013 VA examiner opined that the Veteran's hearing loss is at least as likely as not caused by or a result of an event in service. The examiner noted that the Veteran was exposed to noise in service, as he worked in an office in close proximity to engine testing without hearing protection provided. Moreover, the VA examiner noted that upon entrance, testing indicated normal hearing ability bilaterally, but that upon discharge, testing revealed high frequency hearing loss in both ears. "This is consistent with noise exposure."

Additionally, of record is a March 2010 private medical opinion from S. A. K., M.D.. The private physician noted that the Veteran provided an aerial view showing that he was located approximately 70 yards from the building where the Navy tested jet engines. The examiner found that the "audiogram on his discharge physical revealed that he was suffering from a classic noise related hearing loss when he was discharged from the Navy."

Additionally, the Board notes the Veteran's assertions of continuity of symptomatology of the Veteran's hearing loss, as he asserted at the January 2018 Travel Board hearing. While the presumption of service connection does not apply in this case because there is no evidence of manifestation within one year of service, service connection for the recognized chronic disease can be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").

In this case, the Board has considered the positive nexus opinions of record, as noted above, and finds such to be of significant probative weight. Furthermore, the Board finds that there is evidence of continuity of symptomatology since service. See 38 C.F.R. § 3.307 (a)(3); 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). The consistent and credible lay statements of record indicate continuity of symptomatology. The Veteran has, in detail, consistently reported the acoustic trauma he experienced in service, and the statements by the Veteran's fellow service member corroborates the Veteran's assertions. Thus, following a review of the medical and lay evidence of record, the Board finds the evidence to be of at least equal weight, and resolves all reasonable doubt as to nexus in the Veteran's favor. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. Therefore, recognizing that continuity of symptomatology requires the chronic disease to have manifested in service and resolving reasonable doubt in the Veteran's favor, the Board finds a nexus between the Veteran's current hearing disability and his in-service experience. See 38 C.F.R. §§ 3.303 (b), 3.309; see also 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303.

Accordingly, the Board recognizes the Veteran's current bilateral hearing loss disability and resolves reasonable doubt in the Veteran's favor to find that the evidence supports a grant of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

B. Tinnitus

The Veteran contends that he was exposed to excessive noise during his service in the Navy, resulting in tinnitus. He asserts that he has ringing in the ears that has been present since his exposure to excessive noise in service. As discussed above, the Veteran contends that he was exposed to loud noises from jet engines in a facility nearby. As noted previously, the Board credits the Veteran as a reliable historian of his experiences and noise exposure in service. See Jandreau, 492 F.3d at 1377. For the reasons set forth above, the Board concedes that the Veteran was exposed to excessive noise in service.

The evidence of record documents that the Veteran has current tinnitus inasmuch as the Veteran has credibly stated that he currently has ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the veteran was competent to as to the ringing in his ears because ringing in the ears is capable of lay observation). Because tinnitus is observable by a layperson, the Board finds the Veteran's observation both competent and credible evidence of a current disability.

As to the third prong of Shedden, a nexus between the Veteran's current tinnitus and the Veteran's in-service acoustic trauma, the Board notes the medical and lay evidence of record. The July 2013 VA examiner found that the Veteran's tinnitus was related to the Veteran's service-connected acoustic trauma. Similarly, a March 2010 private medical opinion from S. A. K., M.D., opines that the Veteran's hearing loss resulting from service more likely than not is the cause of his tinnitus.

At the January 2018 Travel Board hearing, the Veteran testified that he has heard ringing in his ears since service, and that he noticed that he heard ringing or crickets in his ears and that no one else heard this. Similarly, in a March 2010 statement, the Veteran's brother-in-law, W. N. P., stated that he lived with the Veteran in 1986 and 1987, and that the Veteran complained of ringing in his ears during this time. The letter indicates that the Veteran complained of hearing noises like crickets chirping.

The Board notes the positive private nexus opinions of record, and finds such opinion to be probative. Further, the Veteran himself is of the opinion that such a link exists between his current tinnitus and active service. While a lay person, he is capable of opining on medical questions that fall within the realm of common knowledge. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).Tinnitus, or ringing in the ears may be observed and described by a lay person. Jandreau, 492 F.3d 1372; Buchanon v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Moreover, service connection for the recognized chronic disease can be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Thus, recognizing that continuity of symptomatology requires the chronic disease to have manifested in service, the Board finds the Veteran's statements as to tinnitus since service to be credible. The Veteran his consistently reported symptomatology of tinnitus since service, and of record is the buddy statement from the Veteran's brother-in-law, who noted that the Veteran complained of ringing in his ears during service. Accordingly, any doubt regarding the onset of the Veteran's current tinnitus must be resolved in the Veteran's favor. Following a review of the medical and lay evidence of record, the Board finds the competent and credible statements of the Veteran as to ongoing tinnitus since service to be of probative value.

Therefore, the Board notes the probative evidence of record and finds that the Veteran's current tinnitus began in service. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds that evidence of noise exposure, current tinnitus, and continuity of symptoms since service, support a grant of entitlement to service connection for tinnitus. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

III. Increased Ratings

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.) Where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The Board will discuss the Veteran's claims for increased ratings of his service-connected major depressive disorder and sinusitis separately below.

A. Sinusitis

The Veteran contends that his sinusitis warrants an increased rating of 30 percent and the Veteran testified that he would be satisfied with a 30 percent disability rating. See January 2018 Travel Board Hearing transcript. The Veteran asserts that he has had more than six treatment episodes per year with treatment with antibiotics.

The RO has evaluated the Veteran's allergic sinusitis under 38 C.F.R. § 4.97, Diagnostic Codes 6522-6513, as 10 percent disabling.

Under Diagnostic Code 6522, a 10 percent rating applies for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating applies when polyps are present.

Under Diagnostic Code 6513, evaluated under the General Rating Formula for Sinusitis, a 10 percent rating applies when the Veteran has one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating applies when the Veteran has three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.

After reviewing all of the clinical evidence and subjective complaints, the Board finds that the preponderance of the evidence shows that a 30 percent rating is warranted under the General Rating Formula for Sinusitis throughout the appeal.

A January 2016 private treatment record from D. W. T. P., M.D., reports a history of recurrent sinusitis with use of medication and antibiotics prescribed. The physician reported days of sinus green and blood tinged congestion, sinus pressure, headaches, runny nose, and moderate chest congestion.

An April 2016 private treatment record from C. A. B., A.R.N.P., reports itchy, watery, and uncomfortable eyes, with nasal congestion, runny nose, and sinus headaches. The physician noted use of medications with symptoms persisting, and prescription of antibiotics.

A May 2016 private treatment record from S. D. W., M.D., indicates treatment for a sinus infection with yellow, greenish nasal discharge with some blood. The Veteran reported intense sinus pressure and pain. The physician noted use of medications and prescription antibiotics.

An August 2016 private treatment record from S. D. W., M.D., indicates treatment for a sinus infection with nasal congestion, green and yellow nasal discharge with some blood, intense sinus pain and pressure. Again, use of medications and prescribed antibiotics was reported.

An October 2016 private treatment record from L. D., P.A., indicates a sinus infection with chest congestion, coughing, and a sore throat. The private treatment record reports use of medicine, a prescription inhaler, and antibiotics.

A November 2016 private treatment record from C. T., A.R.N.P., notes a sinus infection with sinus pressure, coughing, congestion, and headaches. The private treatment record reports use of medicine, a prescription inhaler, and antibiotics.

A December 2016 private treatment record from S. W., M.D., indicates a sinus infection with congestion, sinus pressure, headache, clogged ears, postnasal drip and sore throat. The private treatment record reports use of medicine, a prescription inhaler, and antibiotics.

Private treatment records also report treatment for sinus infections in October 2013, April 2013, January 2013, with sinus headaches, pressure, postnasal drip, discolored nasal discharge, and a low grade fever.

Private treatment records from April 2010, March 2010, December 2009, November 2009, September 2009, and June 2009 indicate sinus infection with discolored nasal drainage, pain, pressure, and use of medications.

The Veteran was afforded a VA examination in April 2009. The VA examiner noted signs of nasal obstruction with 60 percent obstructed in the left nasal, 20 percent obstructed in the right nasal, and a septal deviation. No nasal polyps were noted. The examiner noted a history of incapacitating episodes and non-incapacitating episodes with headaches, fever, purulent drainage, occasional breathing difficulty, and sinus pain lasting 7 to 14 days three times a year.

Considering the lay and medical evidence of record, the Board finds that the Veteran's sinusitis is more nearly approximated by a 30 percent disability rating for the entire period on appeal. The Veteran is competent to report that he has more than 6 non-incapacitating episodes of sinusitis and rhinitis per year that are characterized by headaches, pain, and discharge with crusting. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159 (a)(2). Moreover, the Board finds the Veteran's observations credible in light of the internal consistency of his statements over time, their facial plausibility, and their consistency with the medical evidence of record. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). In that regard, the Board observes that the Veteran repeatedly sought treatment for his sinusitis, including in January 2016, April 2016, May 2016, August 2016, October 2016, November 2016, December 2016, October 2013, April 2013, January 2013, April 2010, March 2010, December 2009, November 2009, September 2009, and June 2009. Therefore, given the above mentioned medical and lay evidence, the Veteran has consistently experienced more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.

As the Veteran has requested a rating of 30 percent, the Board considers the grant of an increased rating to 30 percent to be a full grant of the benefit requested herein. Therefore, the Board will not address an increased rating in excess of 30 percent.

The Board has not assigned the Veteran a 30 percent rating under Diagnostic Code 6522 as polyps are not present separate ratings. Moreover, the Board notes that under Diagnostic Code 6513 and 6522 for the same symptoms-e.g., nasal blockage and crusting-are not available because that would constitute impermissible pyramiding. Id.

Thus, the Board finds that an increased rating of 30 percent is warranted for the entire period on appeal, and is granted herein.

B. Major Depressive Disorder

The Veteran asserts that his major depressive disorder warrants an increased disabling rating of 50 percent. At the January 2018 Travel Board hearing, the Veteran, a psychologist, testified that he does not believe that the last VA examination accurately reflects his symptomatology and the severity of his major depressive disorder, but that his symptoms have remained the same. The Veteran explained that he is on a combination of many medications because he needs them. He testified that he goes home and cries a lot of the time and that he reported suicidal ideations in addition to depressed mood.

The Veteran's major depressive disorder is currently rated as 30 percent disabling for the entire period on appeal under Code 9400-9434. 38 C.F.R. § 4.130.

The General Rating Formula for Mental Disorders as they relate to a major depressive disorder (9400-9434) provides, in pertinent part:

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, mild memory loss (such as forgetting names, directions, recent events).........30.

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- 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; difficulty in establishing and maintaining effective work and social relationships.........50.

The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. Therefore, VA must consider all symptoms of a veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV and, effective August 4, 2014, the DSM-V (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) [DSM-IV] and (5th ed. 2013) [DSM-V]). Id.

The Veteran was afforded VA examinations during which the Veteran was assigned a Global Assessment of Functioning (GAF) score. In evaluating the Veteran's level of disability, the Board has considered the GAF scores as one component of the overall disability picture. GAF scores are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996).

GAF scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school).

A May 2016 private treatment record from C. L. S., M.D., indicates continued treatment for major depressive disorder with treatment using various medications and symptoms of depressed mood, agitation, concentration, fatigue, insomnia, and suicidal ideation. The private physician assigned a GAF of 50.

A February 2014 private treatment record from J. S. T., Ph.D., L.C.S.W., indicates continued treatment for depressive disorder with reports of suicidal ideations, sleep problems, feelings of hopelessness and low self-esteem, lack of energy, irritability, difficulty making decisions, and low frustration tolerance.

The Veteran was afforded a VA examination in April 2013. The VA examiner noted two GAF scores, 50 (based on Veteran's report) and 75 (based on psychological testing from a previous examination). The examiner reported occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks during periods of significant stress, or; symptoms controlled by medication. The VA examination report indicates depressed mood, anxiety, flattened affect, social isolation, irritability, difficulty concentrating, crying spells, increased appetite, insomnia, suicidal thoughts daily without intent, and lack of pleasure.

The Veteran was also afforded a VA examination in January 2013. The VA examiner found the Veteran to have occupational and social impartment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks during periods of significant stress, or; symptoms controlled by medication. The only symptom reported was depressed mood.

The Veteran was afforded an additional VA examination in April 2009. The examiner noted use of anti-depressants and anti-anxiety medication, with continued symptoms of depression, decreased energy, and crying spells.

A January 1999 private treatment indicates adjustment disorder with depression and problems coping, with a GAF of 60.

Given the lay and medical evidence of record, the Board finds that the Veteran's symptoms throughout the period on appeal are more nearly approximated by an increased rating of 50 percent. Although the January and April 2013 VA examination reports indicate occupational and social functioning with decreased work efficiency, the Veteran, a psychologist himself, asserts that such examinations were not adequate as they did not implement appropriate and accurate tests and report his symptoms accurately. Instead, the Veteran asserts that his symptomatology throughout the period on appeal warrants a 50 percent disability rating, and the Board agrees. The Board finds the Veteran's assertions and the private treatment records to be of significant probative weight. Throughout the period on appeal, the Veteran reported working as psychologist but with continued symptoms of depression, to include difficulty concentrating, continuous depressed mood, suicidal ideations, feelings of hopelessness, crying episodes, lack of energy, and irritability.

While the Veteran does not demonstrate all of the listed symptoms provided with a 50 percent rating, the provided symptoms are not to be treated as a checklist when determining what rating is appropriate. Mauerhan, 16 Vet. App. at 442. The Board is reminded that the provided symptoms within the criteria are not to be treated as a checklist when determining what rating is appropriate. Id. Instead, considering the Veteran's symptomatology as a whole, the Board finds that the rating of 50 percent more nearly approximated the Veteran's symptomatology.

Because the Veteran has requested an increased rating of 50 percent, the Board finds that the Veteran's claim is granted in full herein, and the Board will not address an increased rating in excess of 50 percent.

ORDER

Entitlement to service connection for a bilateral hearing loss disability is granted.

Entitlement to service connection for tinnitus is granted.

For the entire period on appeal, entitlement to an initial rating of 30 percent, but no higher, for sinusitis, as secondary to service-connected chronic obstructive pulmonary disease (COPD), is granted.

For the entire period on appeal, entitlement to an initial rating of 50 percent, but no higher, for major depressive disorder (claimed as depression), as secondary to service-connected chronic obstructive pulmonary disease (COPD), is granted.

REMAND

The Board remands the issues of entitlement to service connection for sleep apnea, Crohn's disease (colitis), and GERD for additional VA examinations to determine the etiology of the Veteran's asserted claims.

A. Sleep Apnea

Regarding the issue of entitlement to service connection for sleep apnea, the Veteran asserts that he has a current diagnosis of sleep apnea with use of CPAP machine nightly, which is the result of his service. Private treatment records confirm such diagnosis. The Veteran asserts that he had symptoms of sleep apnea in service and that his brother-in-law saw such symptoms, to include heavy snoring and gasping for air in his sleep. See 2010 buddy statement from W. N. P.

The Veteran was afforded a VA examination of his sleep apnea in July 2013. The VA examiner noted that the Veteran's sleep apnea is less likely as not caused by or a result of , or aggravated by, sinusitis, as there was a noted improvement in the Veteran's sleep apnea condition based on sleep studies.

However, of record is a March 2010 private treatment record from S. A. K., M.D., which states that the Veteran's sleep apnea is aggravated by his sinusitis, as chronic sinusitis results in a narrowing of the airways aggravating sleep apnea. Additionally, Dr. S. A. K. opined that "[i]t is a virtual certainty that [the Veteran's] sleep apnea began during his Naval service," given the Veteran's weight, reported snoring, gasping for air, and breathing with heavy snoring observed by his brother-in-law during service. See also March 2010 buddy statement from W. N. P.

Given that the July 2013 VA examiner did not address whether the Veteran's currently diagnosed sleep apnea began in service, the Board remands this matter for an additional VA examination and opinion regarding the etiology of the Veteran's sleep apnea.

B. Crohn's Disease (Colitis)

The Veteran asserts that his current Crohn's disease has been aggravated by his service-connected depression. The Veteran asserts that he had symptoms of Crohn's disease in service, with his brother-in-law reporting that he remembers the Veteran using the restroom often, which was the same symptom that led to his diagnosis in 1999. Additionally, the Veteran asserts that his treating psychologist has provided a private opinion noting the aggravation. In a March 2010 private treatment record, Dr. C. L. S., M.D., indicates that the Veteran's Crohn's disease is at least to some extent aggravated by his depression.

However, the Board finds that an examination by a VA examiner of sufficient expertise in the area of Crohn's disease is needed to properly determine the etiology of the Veteran's current Crohn's disease. Therefore, such examination and opinion is requested upon remand.

C. GERD

Last, the Veteran asserts that his currently diagnosed GERD is aggravated by his service-connected sinusitis and depression. See January 2018 Travel Board Hearing transcript.

The Veteran was afforded a VA examination in July 2013, and the VA examiner opined that the Veteran's GERD is less likely as not caused by or a result of, or aggravated by, the Veteran's diagnosed COPD or sinusitis. In a March 2010 private treatment record, C. L. S., M.D., indicates that the Veteran's GERD is at least to some extent aggravated by his depression. Additionally, in a March 2010 private medical opinion, S. A. K., M.D., opined that the Veteran's GERD is aggravated by his post-nasal drip, stating that "[p]ost nasal drainage from sinusitis further irritates the larynx and pharynx already hypersensitive from chronic acid reflux."

However, the Board finds that an examination by a VA examiner of sufficient expertise in the area of GERD is needed to properly determine the etiology of the Veteran's current GERD. Therefore, such examination and opinion is requested upon remand.

Accordingly, the case is REMANDED for the following action:

1. Obtain any outstanding and relevant VA and/or private treatment records. Should such exist, associate such with the Veteran's electronic claims record.

2. Thereafter, schedule the Veteran for a VA examination with a physician of sufficient medical expertise determine the nature and etiology of his GERD and Crohn's Disease.

Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file and should note that this case review took place.

After a review of the claims file, the examiner must respond to the following:

GERD:

(a) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's currently diagnosed GERD had its onset in service or is otherwise related to service?

(b) Is it at least as likely as not that the Veteran's currently diagnosed GERD was caused or aggravated (increased in severity) by the Veteran's service-connected major depressive disorder, to include any treatment received thereof?

The VA examiner is directed to consider and address any discrepancies with the March 2010 private treatment record from C. L. S., M.D., which indicates that the Veteran's GERD is at least to some extent aggravated by his depression.

(c) Is it at least as likely as not that the Veteran's currently diagnosed GERD was caused or aggravated (increased in severity) by the Veteran's service-connected sinusitis, to include any treatment received thereof?

The VA examiner is directed to consider and address any discrepancies with the March 2010 private medical opinion from S. A. K., M.D., which states that Veteran's GERD is aggravated by his post-nasal drip because "[p]ost nasal drainage from sinusitis further irritates the larynx and pharynx already hypersensitive from chronic acid reflux."

Crohn's Disease:

(a) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's currently diagnosed Crohn's disease had its onset in service or is otherwise related to service?

The VA examiner is directed to consider and address the Veteran's assertions that he had symptoms of Crohn's disease in service, with his brother-in-law reporting that he remembers the Veteran using the restroom often, which was the same symptom that led to his diagnosis in 1999. See January 2018 Travel Board Hearing transcript; see also March 2010 statement from the Veteran's brother-in-law, W. N. P..

(b) Is it at least as likely as not that the Veteran's currently diagnosed Crohn's disease was caused or aggravated (increased in severity) by the Veteran's service-connected major depressive disorder, to include any treatment received thereof?

The VA examiner is directed to consider and address any discrepancies with the March 2010 private treatment record from C. L. S., M.D., which indicates that the Veteran's Crohn's disease is at least to some extent aggravated by his depression.

For any opinion provided, if the opinion is that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of the severity of the nonservice-connected disorder before the on-set of aggravation. "Aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms.

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it.

A detailed rationale for the opinion must be provided. Review of the entire claims file is required.

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).

3. After completing directive (1), schedule the Veteran for a VA examination with a physician of sufficient medical expertise determine the nature and etiology of his sleep apnea.

Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file and should note that this case review took place.

After a review of the claims file, the examiner must respond to the following:

(a) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's currently diagnosed sleep apnea had its onset in service or is otherwise related to service?

The VA examiner is directed to consider and address the Veteran assertion that he had symptoms of sleep apnea in service, his brother-in-law's statement that saw such symptoms, to include heavy snoring and gasping for air in his sleep. See 2010 buddy statement from W. N. P. See January 2018 Travel Board Hearing transcript; see also March 2010 statement from the Veteran's brother-in-law, W. N. P..

The VA examiner is also directed to consider and address any discrepancies with Dr. S. A. K.'s March 2010 opinion that "[i]t is a virtual certainty that [the Veteran's] sleep apnea began during his Naval service," given the Veteran's weight, reported snoring, gasping for air, and breathing with heavy snoring observed by his brother-in-law during service. See also March 2010 buddy statement from W. N. P.

(b) Is it at least as likely as not that the Veteran's currently diagnosed sleep apnea was caused or aggravated (increased in severity) by the Veteran's service-connected sinusitis, to include any treatment received thereof?

The VA examiner is directed to consider and address any discrepancies with the July 2013 VA examination, which found that the Veteran's sleep apnea is less likely as not caused by or a result of , or aggravated by, sinusitis, as there was a noted improvement in the Veteran's sleep apnea condition based on sleep studies.

The VA examiner is also directed to consider and address any discrepancies with the March 2010 private treatment record from S. A. K., M.D., which states that the Veteran's sleep apnea is aggravated by his sinusitis, as chronic sinusitis results in a narrowing of the airways aggravating sleep apnea.

If the opinion is that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of the severity of the nonservice-connected disorder before the on-set of aggravation. "Aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms.

A detailed rationale for the opinion must be provided. Review of the entire claims file is required.

4. After completing the requested actions, and any additional notification and/or development deemed warranted, the issues should be readjudicated in light of all the evidence of record. If a benefit sought on appeal remains denied, the AOJ should furnish to the Veteran and representative an appropriate supplemental statement of the case (SSOC) and should afford them the appropriate time period for response.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs