Citation Nr: 1801076 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-07 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating higher than 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial compensable rating for hypertension. 3. Entitlement to an initial compensable rating for bilateral hearing loss. 4. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a right knee condition, and if so, whether service connection is warranted. 5. Entitlement to service connection for a left inguinal hernia. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from March 1989 to October 1992, August 2004 to January 2006, July 2007 to September 2008, and October 2009 to October 2010. He was awarded the Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In an August 2011 rating decision, the RO resumed a 30 percent rating for PTSD which had been discontinued due to the Veteran's return to active duty. The RO also granted service connection for hypertension and assigned a 0 percent (noncompensable) rating effective October 10, 2010. It reopened but denied a previously denied claim for service connection for a right knee condition. In September 2012, the RO denied service connection for a left inguinal hernia. In October 2013, the RO granted service connection for bilateral hearing loss and assigned a 0 percent rating effective from October 10, 2010. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in April 2017. A copy of the hearing transcript is of record. Notably, the claims were most recently adjudicated by the RO in statements of the case (SOCs) in 2013. Since that time, additional evidence has been received. However, because the Veteran's substantive appeals were filed in 2014 and 2015, the Board may review this evidence in the first instance. See 38 U.S.C. § 7105, as amended by Public Law 112-154 , section 501 (providing that evidence received with or after any Substantive Appeal received on or after February 2, 2013, is subject to initial review by the Board). FINDINGS OF FACT 1. PTSD is manifested by chronic sleep impairment, anxiety and emotional numbness, but with overall satisfactory functioning. 2. Hypertension is manifested by a history of diastolic pressure of 100 and requires continuous medication for control. 3. Bilateral hearing loss was manifested by hearing levels of I in both ears throughout the appeal period. 4. The Veteran did not appeal an August 2009 rating decision which denied service connection for a right knee condition, but evidence received since that time establishes that current right knee patellofemoral syndrome is etiologically related to service. 5. A left inguinal hernia is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for an initial 10 percent rating for hypertension have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104, DC 7101 (2017). 3. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.85, DC 6100 (2017). 4. The claim for service connection for a right knee condition is reopened, and the criteria for service connection for right knee patellofemoral syndrome have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107, 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 3.160(d), 3.303, 20.200, 20.302, 20.1103 (2017). 5. The criteria for service connection for a left inguinal hernia have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A. PTSD The Veteran is currently assigned a 30 percent rating for PTSD under Diagnostic Code 9411, which is part of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent evaluation contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). A 50 percent evaluation is warranted where the disorder is manifested by 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 for example, 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. A 70 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. A veteran "may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114 (Fed. Cir. 2013). Symptoms listed in the General Rating Formula serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). In this case, the Board finds that a rating higher than 30 percent is not warranted. Throughout the appeal period, the Veteran has reported difficulties with anxiety, suspiciousness, and nightmares and sleep impairment. See July 2010 Service Records; January 2011 VA Records; May 2013 VA Records; August 2013 VA Examination; May 2014 Disability Benefits Questionnaire (DBQ). The May 2014 DBQ also noted mild memory loss. These symptoms are all expressly contemplated under the criteria for the assigned 30 percent rating. At various times, he reported feeling emotionally numb or detached. However, in February 2011, May 2013, August 2013, and September 2014, he reported having satisfactory relationships with his wife, children, and grandchildren. In February 2011, August 2013, May 2014, and September 2014, he reported having little or no occupational impairment working as a school custodian or completing his online course work for a degree in criminal justice. These findings correspond to the assessment of the August 2013 VA examiner, who found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily. The May 2014 DBQ, completed by his treatment provider, noted occupational and social impairment due to mild or transient symptoms which decrease work efficiency only during periods of significant stress. These assessments further demonstrate a level of impairment consistent with the 30 percent rating. The only noted symptom that could be consistent with the higher 50 percent rating is a restricted affect, which was documented on several occasions. However, in the absence of any speech abnormalities, frequent panic attacks, long-term memory impairment, significant mood disturbances, or other such symptoms, a restricted affect by itself is not sufficiently severe to warrant a higher rating. B. Hypertension The Veteran is currently assigned a 0 percent rating for hypertension under 38 C.F.R. § 4.104, DC 7101. Under that code, a 10 percent disability evaluation is warranted where diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or the individual has a history of diastolic pressure of 100 or more and requires continuous medication for control. A 20 percent rating is assigned when diastolic pressure is predominantly 110 or more or systolic pressure is 200 or more. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In this case, the Board finds that a 10 percent rating is warranted. Service treatment records from December 2009 show that the Veteran underwent a five day blood pressure check. The resulting blood pressure readings were 142/96, 150/98, 144/100, 170/100, and 164/98. He was diagnosed with hypertension and started on medication. As the Veteran had two readings with diastolic pressure of 100 and one reading with systolic pressure over 160, the Board finds that the Veteran's blood pressure prior to treatment with medication approximated by a history of diastolic pressure of 100 or more as contemplated by DC 7101. Additional service treatment records from July 2010 show blood pressure of 164/91 even with medication. A February 2011 VA examination recorded blood pressure readings of 137/88, 132/91, and 135/94, and the examiner noted that hypertension was poorly controlled. VA records, a May 2013 VA examination, and the Veteran's April 2017 hearing testimony document that he has been treated with medication since service. In sum, the evidence establishes a history consistent with diastolic pressure of 100 or more and the continuous use of medication for control, which satisfies the criteria for a 10 percent rating. However, a higher 20 percent rating is not appropriate as none of the blood pressure readings recorded in service, in VA treatment records, or during VA examinations registered diastolic pressure of 110 or more. C. Hearing Loss Evaluations of defective hearing range from zero to 100 percent. This is based on impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. See id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the pure tone decibel loss. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). The ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Service treatment records dated July 2010, shortly before the Veteran's discharge from service, include audiometric testing. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 20 40 35 26 LEFT 15 10 35 40 25 No speech recognition scores were recorded. Pure tone thresholds of 25 and 26 dB both correspond to hearing level I under Table VIA, which provides hearing levels based on pure tone thresholds only. Utilizing Table VII, hearing levels of I in both ears corresponds to a 0 percent rating. The Veteran underwent a VA examination in January 2011. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 15 40 40 26 LEFT 15 15 45 50 25 Speech audiometry revealed speech recognition ability of 100 percent in both ears. Utilizing 38 C.F.R. § 4.85, Table VI, speech recognition scores of 100 percent and thresholds of 25 or 26 dB correspond to hearing levels of I in each ear. As noted above, under Table VII, this corresponds to a 0 percent rating. The Veteran underwent an additional VA examination in September 2013. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 35 50 40 35 LEFT 20 30 40 45 36 Speech audiometry revealed speech recognition ability of 100 percent in both ears. Utilizing 38 C.F.R. § 4.85, Table VI, speech recognition scores of 100 percent and thresholds of 35 or 36 dB correspond to hearing levels of I in each ear. As noted above, under Table VII, this corresponds to a 0 percent rating. The Veteran submitted a private audiometric report dated July 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 25 55 45 35 LEFT 20 20 50 55 36 Speech audiometry revealed speech recognition ability of 100 percent in both ears. As noted above, speech recognition scores of 100 percent and thresholds of 35 or 36 dB correspond to hearing levels of I in each ear, which again correspond to a 0 percent rating. In sum, objective testing of the Veteran's hearing revealed levels of impairment consistent with the 0 percent rating assigned during the appeal period. The Board has considered the functional effects of the Veteran's condition. The September 2013 VA examiner noted the Veteran had difficulties with general hearing. However, the schedular criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech. Doucette v. Shulkin, 28 Vet. App. 366 (2017). There is no indication of any impairment associated with bilateral hearing loss that goes beyond that contemplated by the rating criteria. II. New and Material Evidence Historically, the Veteran was denied service connection for a right knee condition in rating decisions from December 2008 and August 2009, which he did not appeal. The basis of the denials was that a right knee condition was not shown in service. Although the RO reopened the Veteran's hearing loss claim and has adjudicated the issue on the merits in the August 2011 rating decision on appeal, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. "New" evidence means evidence not previously submitted to agency decisionmakers, and "material" evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, although not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Since the prior final rating decision, additional evidence has been received. Service treatment records dated July 2010 show the Veteran identified his right knee as an area of concern, and that he sustained a right knee injury while on active duty which he did not seek medical care for. A January 2014 memorandum from the National Guard Bureau stated that "right knee patellofemoral" occurred in the line of duty during Operation Iraqi Freedom. This evidence is new because it was not part of the record at the time of the prior final denial. It is also material because it relates to the previously unestablished fact of whether a right knee condition was incurred during military service. Therefore, new and material evidence has been received and the claim is reopened. Notably, VA is generally supposed to reconsider, rather than reopen, prior decisions when relevant service records are associated with the claims file. However, this is limited to situations in which the service records in question existed at the time of the prior decision but had not been added to the record. 38 C.F.R. § 3.156(c). In this case, the July 2010 service treatment record and January 2014 memorandum discussed above were both generated after the August 2009 denial of the right knee claim. For this reason, reopening the claim, rather the reconsidering it, is the appropriate result. The merits of the reopened claim for service connection will be discussed below. III. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2017). A. Right Knee With respect to element (1), a current condition, a February 2011 VA examination diagnosed the Veteran with right knee patellofemoral syndrome. Therefore, element (1) has been met. With respect to element (2), an in-service incurrence of the condition, service treatment records dated July 2010 show the Veteran identified his right knee as an area of concern, and that he sustained a right knee injury while on active duty which he did not seek medical care for. A January 2014 memorandum from the National Guard Bureau stated that "right knee patellofemoral" occurred in the line of duty during Operation Iraqi Freedom. Therefore, element (2) has been satisfied. With respect to element (3), a link between the current condition and service, the Board notes that there is no specific medical opinion which connects the Veteran's current right knee patellofemoral syndrome to his period of active service. A May 2013 VA opinion stated that it was less likely than not that such a link existed, however the examiner overlooked the July 2010 service records and did not have the benefit of the January 2014 memorandum. Given that the Veteran was diagnosed with patellofemoral syndrome in February 2011, shortly after his discharge in October 2010, and given that the January 2014 memorandum states that a right knee patellofemoral condition was incurred in the line of duty, the Board finds it reasonable to conclude that the overall weight of the evidence is sufficient to establish service connection based on the same condition being identified in service and after service, as well as the short time interval between separation from service and the initial post-service diagnosis. 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service). B. Left Inguinal Hernia With respect to element (1), a current diagnosis, the Veteran was diagnosed with a left inguinal hernia during a February 2011 VA examination. This was prior to the filing of his claim in October 2011. During a February 2012 VA examination, no hernia was found. The Veteran reportedly stated that he did not have an inguinal hernia and had never been told he had one by a doctor. Rather, he was informed by the RO that a hernia was present and that he filed a claim "since I was denied all the other stuff." Notably, a review of the Veteran's VA treatment records shows no reference to a left inguinal hernia. Generally, a current disability is shown if a condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). Consideration must also be given to diagnoses which predate the filing of a claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). A determination that a diagnosis is sufficiently proximate to the filing of a claim so as to constitute evidence of a "current diagnosis" is a factual finding to be made by the Board in the first instance. Id. at n.4. In this case, given that the Veteran filed his claim for a left inguinal hernia less than one year after he was diagnosed with the condition, the Board finds that the diagnosis is sufficiently proximate to the claim to establish a "current diagnosis," and therefore element (1) has been met. As to whether the condition is related to service, the available service treatment records do not specifically reference a hernia. However, a January 2014 memorandum from the National Guard Bureau stated that a left inguinal hernia occurred in the line of the duty. As with the right knee condition above, the Board finds it reasonable to conclude that the overall weight of the evidence is sufficient to establish service connection based on the same condition being identified in service and after service, as well as the short time interval between separation from service and the initial post-service diagnosis. ORDER A rating higher than 30 percent for PTSD is denied. An initial 10 percent rating for hypertension is granted. An initial compensable rating for bilateral hearing loss is denied. The claim for service connection for a right knee condition is reopened, and service connection for right knee patellofemoral syndrome is granted. Service connection for a left inguinal hernia is granted. ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs