Citation Nr: 1752991 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-33 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for chronic myositis, para-lumbar spine muscles. 3. Entitlement to service connection for chronic low back pain. 4. Entitlement to service connection for osteoarthritis of the ankles. 5. Entitlement to service connection for osteoarthritis of the knees. 6. Entitlement to service connection for hypertension. 7. Entitlement to service connection for gastritis, to include as secondary to medications for service-connected disabilities. 8. Entitlement to service connection for posttraumatic stress disorder (PTSD). 9. Entitlement to service connection for an acquired psychiatric condition other than PTSD, to include major depression disease, also claimed as generalized anxiety disorder and nervous condition. 10. Entitlement to a compensable initial disability rating for left ear hearing loss. 11. Entitlement to a disability rating in excess of 10 percent for residuals of a cold injury to the left foot. 12. Entitlement to a disability rating in excess of 10 percent for residuals of a cold injury to the right foot. 13. Entitlement to an initial disability rating in excess of 10 percent for residuals of a cold injury to the left hand. 14. Entitlement to an initial disability rating in excess of 10 percent for residuals of a cold injury to the right hand. 15. Entitlement to a total disability rating due to individual unemployability (TDIU). (The issue of entitlement to a waiver of recovery of an overpayment of nonservice-connected pension benefits will be addressed in a separate Board decision) REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alexander Panio, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1953 to May 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for chronic myositis, para-lumbar spine muscles, chronic low back pain, an acquired psychiatric disorder, to include PTSD, entitlement to increased disability ratings for cold injury residuals to the Veteran's hands and feet and entitlement to a TDIU 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 does not have a right ear hearing loss disability for VA benefits purposes. 2. The evidence of record does not demonstrate an in-service injury or disease affecting the Veteran's ankles or knees. 3. The Veteran's hypertension was not present during service or for many years thereafter. 4. The Veteran's gastritis was not incurred during active duty and is not otherwise related to military service or to any medications prescribed for service-connected disabilities. 5. Audiological evaluations performed during the appeal period reveal no worse than Level I hearing impairment in the Veteran's left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.383, 3.385 (2016). 2. The criteria for entitlement to service connection for osteoarthritis of the ankles are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 3. The criteria for entitlement to service connection for osteoarthritis of the knees are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 4. The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 5. The criteria for entitlement to service connection for gastritis, to include as secondary to medications for service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). 6. The criteria for a compensable rating for left ear hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.383, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. SERVICE CONNECTION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). A. Hearing Loss - Right Ear Although a July 2014 letter from the Veteran's private treatment provider, Dr. C.M.Q., diagnosed "bilateral deafness," the record does not establish that the Veteran has a current diagnosis of hearing loss sufficient to constitute a current disability under applicable VA regulations. For VA purposes, impaired hearing is considered to be 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 above frequencies 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; see Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The Veteran's hearing acuity was measured using appropriate methods at VA audio examinations in September 2015 and March 2017. The Veteran's right ear average puretone thresholds have not exceeded 28 decibels and he has not exhibited thresholds of 26 decibels or higher at three applicable frequencies. The Veteran's speech discrimination scores have been 100 percent and the file contains no other valid test results showing more severe hearing loss. The Veteran is not competent to state whether he has meet the auditory thresholds necessary to establish hearing loss under 38 C.F.R. § 3.385. Thus, the Veteran is not considered to be hearing impaired to a disabling extent in his right ear under applicable regulations and therefore service connection cannot be granted. 38 C.F.R. §§ 3.303, 3.385; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). B. Musculoskeletal Conditions A July 2014 letter from the Veteran's private treatment provider, Dr. C.M.Q., notes "stiffness, numbness, tingling, sensorial loss, cramps, weakness and instability radiating to hips, knees and ankles." The same letter diagnoses the Veteran with osteoarthritis of the knees and ankles. The Veteran has not identified any specific in-service injuries to ankles or knees; however the July 2014 letter states that the conditions are "more probable than not" secondary to the Veteran's "military service performance." VA treatment records do not contain diagnoses or treatment for osteoarthritis in either the Veteran's knees or ankles. Likewise, private treatment records are silent as to any diagnosis or x-ray evidence of osteoarthritis of the knees or ankles. The Board is thus skeptical that the Veteran has a valid current diagnosis of ankle or knee osteoarthritis. However, even assuming the Veteran has a current diagnosis of either condition, the Board finds that service connection is still not warranted. Service treatment records do not contain any complaints, diagnoses, or treatment for any knee or ankle problem and no such problems were found on the Veteran's May 1955 separation report of medical examination. As such, the element of an in-service injury or disease is not met and service connection on a direct basis is not warranted. 38 C.F.R. § 3.303. Moreover, as noted, the evidence of record does not show a diagnosis of osteoarthritis of the knees or ankles apart from the July 2014 letter from Dr. C.M.Q. dated decades after service, nor does the record show a compensable manifestation within a year of separation or a pattern of chronic and continuous ankle or knee symptomatology since service. As such, service connection is not presumptively available as a chronic disease or based on a continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). C. Hypertension The Veteran has been treated for hypertension during the appeal period and contends that the condition is service related. Service treatment records do not contain complaints, diagnoses, or treatment for chronic high blood pressure or hypertension and the Veteran's blood pressure was normal (100/70) at his May 1955 separation examination. Furthermore, while hypertension is also considered a chronic disease, treatment records show the Veteran underwent multiple cardiac evaluations in the decades following separation, including VA examinations in November 1966 (120/90) and June 1969 (110/70) and VA treatment records in February 1971 (120/70), May 1971 (110/70) and August 1971 (110/80), that failed to detect or diagnose hypertension and included normal blood pressure readings. As such, there is no indication of a compensable manifestation of hypertension within a year of separation or for many years thereafter and no showing of chronic and continuous high blood pressure since service. As such, the requirements for service connection for hypertension are not met. Id. D. Gastritis The Veteran has been diagnosed with gastritis since 1999. In his April 2015 claim for benefits, the Veteran stated that service connection was warranted for this condition on a secondary basis to medication intake. However in an October 2016 statement the Veteran mentioned that he had gastritis after he was hospitalized for frostbite on his feet during service. The Board finds that service connection for gastritis is not warranted on a direct or secondary basis. Service treatment records do not contain complaints, diagnoses, or treatment for gastritis, and there is no mention of gastritis or other stomach condition on his May 1955 separation report of medical examination. While the Veteran contends that he had gastritis following his frostbite hospitalization in service, he is not considered competent to make such a medical determination, and even if he was competent to do so, his statement lacks credibility, given the contemporaneous evidence of record showing no gastrointestinal complaints, to include the service treatment records and multiple VA examinations following service. As there is no competent evidence demonstrating an in-service stomach injury or illness, the Board finds that the requirements for service connection for gastritis on a direct basis have not been satisfied. 38 C.F.R. § 3.303. The Veteran underwent a VA examination in May 2015 to assess whether his gastritis was secondary to medications taken for his service-connected disabilities. He reported a history of epigastric burning sensation and bloating since 1999. The examiner noted that the Veteran was not taking any medications for his service-connected disabilities (frostbite residuals, hearing loss and tinnitus). As the Veteran is not taking medication for any service connected disability, there requirements for service connection on a secondary basis are also not satisfied. 38 C.F.R. § 3.310. II. DISABILITY RATING Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The rating schedule provides a table to determine the Roman numeral designation for hearing impairment based upon a combination of the percent of speech discrimination and the puretone threshold average. See 38 C.F.R. § 4.85, Table VI, Table VII (Diagnostic Code 6100). The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. See 38 C.F.R. § 4.85. Moreover, difficulty or inability to hear or understand speech or to hear other sounds in various contexts is contemplated in the schedular rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection. Fenderson v. West 12 Vet. App. 119, 126 (1999). Controlled speech discrimination testing (Maryland CNC) and pure tone audiometry testing results from VA audiology examinations conducted in September 2015 and March 2017 fail to demonstrate more profound hearing loss than Level I in the left ear, which warrants a 0 percent rating. See 38 C.F.R. § 4.85, Table VI, Table VII (Diagnostic Code 6100). A pattern of exceptional hearing loss is also not demonstrated, as puretone thresholds were not 55 dB or more at 1000, 2000, 3000 or 4000 Hertz or 30 dB or less at 1000 Hertz and 70 dB or more at 2000 Hertz during either examination. 38 C.F.R. § 4.86. Finally, 38 C.F.R. § 3.383(a) addressing special considerations for paired organs does not apply because the left ear does not warrant a compensable evaluation and the right ear does not meet the criteria of 38 C.F.R. § 3.385 for an impaired hearing disability. As such, a compensable rating for bilateral hearing loss is not warranted. ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for osteoarthritis of the ankles is denied. Entitlement to service connection for osteoarthritis of the knees is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for gastritis is denied. Entitlement to a compensable initial rating for left ear hearing loss is denied. REMAND In his July 2014 letter, Dr. C.M.Q. diagnoses the Veteran with chronic low back pain and chronic myositis of the para-lumbar spine muscles that are "more probable than not" secondary to service, with no supporting rationale. Service treatment records also note two instances of back pain in Feburary 1955. On remand, a VA examination is necessary to determine the precise nature and etiology of any current back disabilities is needed. VA treatment records show the Veteran has been diagnosed with an acquired psychiatric condition during the course of the appeal period, identified possibly as adjustment disorder with mixed anxiety. Service treatment records note some instances of nervousness and anxiety. Additionally, the Veteran was diagnosed with PTSD in a July 2014 letter from Dr. C.M.Q. Although the letter did not address whether the diagnosis was made in conformance with DSM-5 requirements and did not tie the condition to any articulated stressor event, the Veteran appeared to indicate in his August 2014 statement that his hospitalization for frostbite was a stressful event. The Board finds that an examination is warranted in order to determine whether the Veteran has a current diagnosis of any acquired psychiatric disorder that is related to service. The examiner should also assess whether the Veteran has PTSD under the applicable criteria and if so, whether the condition is related to a valid in-service stressor. Regarding the Veteran's cold injury residuals of the hands and feet, a November 2012 VA treatment record indicates the existence of x-rays taken on October 23, 2012 outside of VA showing osteoarthritis. These x-rays are not of record, and it is unclear from the record whether one or both hands are affected. Moreover, no X-ray studies were conducted during the 2015 or 2017 cold injury residual examintions, and given the July 2014 letter from Dr. C.M.Q., such studies are necessary in order to determine the proper rating assigned for these disabilties. As such, the claims must be remanded in order to obtain these x-rays, and afford the Veteran a new examination with x-ray studies of the feet (and hands, if the above-referenced x-rays cannot be obtained or do not show abnormalities supporting an increased rating). As the issue of entitlement to a TDIU is inextricably intertwined to the outcome of the Veteran's increased rating claim, the issue is remanded pending the outcome of the development on that issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Any outstanding VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate any outstanding VA treatment records that pertain to the Veteran. 2. With any necessary assistance from the Veteran, obtain any outstanding private treatment records relevant to his remanded claims, to specifically include the October 23, 2012 X-ray studies of the hands referenced in the November 2012 VA treatment record. 3. The schedule the Veteran for an examination determine the current severity of the Veteran's service-connected cold injury residuals of the hands and feet. The examiner is advised of the following: (a) X-ray studies of the feet must be conducted; (b) X-ray studies of the hands must be conducted only if the October 23, 2012 X-ray studies are unavailable or do not demonstrate any abnormalities associated with the Veteran's cold injury residuals. 4. Then schedule the Veteran for an examination to assess the nature and etiology of any current back disorder. The claims file, including a copy of this remand, must be made available for review. All indicated tests and studies should be accomplished. The examiner is requested to address the following: (a) Diagnose all current back disabilities present since August 2014. (b) For each disability so diagnosed, please opine as to whether it is at least as likely as not (50 percent probability or more) such disability had its onset in or is otherwise related to his active military service. The opinion must discuss the Veteran's low back complaints in service in February 1955. 5. Then schedule the Veteran for an examination to assess the nature and etiology of any current acquired psychiatric disorder. The entire claims file, including any newly obtained treatment records, must be reviewed by the examiner. The examiner should respond to the following: (a) Please indicate whether the Veteran meets the criteria for a DSM-5 diagnosis of PTSD, and if so, identify the stressor(s) upon which such diagnosis is based. If a diagnosis of PTSD is not made, the examiner should provide a detailed discussion of why the Veteran does not meet the DSM-IV PTSD diagnostic criteria for that diagnosis, and specifically address the diagnosis of the same in the July 2014 letter from Dr. C.M.Q. (b) For any psychiatric disability other than PTSD diagnosed, the examiner is requested to opine as to whether it is at least as likely as not (50 percent probability or greater) that such disability had its onset in service or is otherwise the result of service, to include documented nervousness and anxiety therein. A comprehensive rationale must be furnished for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. Then readjudicate the issues on appeal. The Veteran has the right to submit additional evidence and argument on the m 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs