Citation Nr: 1804464 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 11-33 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a hearing loss disability of the right ear. 2. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), major depressive disorder, anxiety, and mixed bi-polar disorder. 3. Entitlement to service connection for a left leg disability, to include degenerative arthritis. 4. Entitlement to service connection for a gastrointestinal disability, to include gastroesophageal reflux disease (GERD) and helicobacter pylori, claimed as stomach problems. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Grace J. Suh, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1983 to February 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes the RO first denied the Veteran's service connection claim for PTSD in a May 2008 rating decision. Although he initiated an appeal with respect to this decision, he did not perfect the appeal following the issuance of a September 2009 Statement of the Case (SOC). As a result, the May 2008 rating decision became final. 38 C.F.R. § 20.1103 (2017). However, in April 2010, the RO received service department records, which were not previously associated with the claims file. These service department records existed prior to May 2008 decision and are relevant to the claim at hand. Therefore, reconsideration of this claim is appropriate. 38 C.F.R. § 3.156(c) (2017). The Board has broadened and re-characterized the Veteran's service connection claim for PTSD to a claim for an acquired psychiatric disorder, to include PTSD, major depressive disorder, anxiety, and mixed bi-polar disorder, in light of the evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In doing so, the Board acknowledges the RO separately denied his service connection claim for bi-polar disorder, in a February 2015 rating decision during the pendency of this appeal. While he initiated an appeal with respect to this decision, he did not perfect the appeal following the issuance of a May 2016 SOC. Nonetheless, given the nature of the claim before the Board, the service connection claim for bi-polar disorder is within the Board's purview. Similarly, Board has broadened and re-characterized the Veteran's service connection claim for arthritis of the left leg to a claim for a left leg disability, to include degenerative arthritis, in light of the evidence of record. See Clemons, supra. In doing so, the Board acknowledges that in a January 2017 rating decision the RO separately denied his service connection claim for a left knee disability during the pendency of this appeal. To date, he has not initiated an appeal with respect to this decision. Regardless, given the nature of the claim before the Board, the service connection claim for a left knee disability also is within the Board's purview. In October 2017, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing in Washington, D.C.; a transcript has been associated with the claims file. The issues of entitlement to service connection for an acquired psychiatric disorder, left leg disability, and gastrointestinal disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The Veteran does not have a current hearing loss disability of the right ear for VA compensation purposes. CONCLUSIONS OF LAW The criteria for service connection for a hearing loss disability in the right ear have not been met. 38 U.S.C. §§ 1111, 1112, 1113, 1131, 1132, 1133, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307(a), 3.309(a), 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for a Hearing Loss Disability of the Right Ear The Veteran contends he suffers from hearing impairment in his right ear due to hazardous noise exposure in service. See October 2009 Letter from the Veteran; October 2017 Board Hearing Transcript at 13. More specifically, he avers that he was exposed to noise from small arms fire, heavy artillery fire, bombs, howitzers, as well as helicopters and other aircraft in service. April 2010 VA Examination Report; September 2010 VA Examination Report. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. In that regard, service connection may established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For VA compensation purposes, to establish a current hearing loss disability, the auditory threshold requirements delineated in 38 C.F.R. § 3.385 must be met. Pursuant to 38 C.F.R. § 3.385, the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz (Hz) must be 40 decibels (dBs) or greater; or, the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz must be 26 dBs or greater; or, the speech recognition score using the Maryland CNC test must be less than 94 percent. In assessing the evidence of record, the Board recognizes the Veteran is competent to provide evidence regarding the lay observable symptoms of his hearing impairment. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that while a lay person is not competent to opine as to medical etiology or render medical opinions, they are competent to establish the presence of observable symptomatology). However, for VA compensation purposes, audiometric testing conducted by a state-licensed audiologist is required to evaluate hearing impairment. 38 C.F.R. § 4.85 (2017). Since there is no evidence of record establishing that the Veteran is a state-licensed audiologist, he is not competent to provide evidence regarding his hearing loss in terms of puretone thresholds and speech discrimination percentage. See Barr, supra; Jones v. West, 12 Vet. App. 460, 465 (1999) (holding that only those with specialized medical knowledge, training, or experience are competent to render a medical diagnosis). As a result, the Board must rely on the medical evidence of record. A review of the medical records reveals only two audiometric test results; an April 2010 Audio VA Examination Report and September 2010 Audio VA Examination Report. The Veteran was first examined by the VA in April 2010. See April 2010 Audio VA Examination Report. Audiometric testing at that time yielded the following results: PURETONE THRESHOLDS 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 dB 10 dB 15 dB 20 dB 35 dB Left Ear 20 dB 20 dB 25 dB 30 dB 45 dB PURETONE THRESHOLD AVERAGE Right Ear 20 dB Left Ear 30 dB SPEECH RECOGNITION Right Ear 96% Left Ear 96% Five months later, the Veteran was afforded another VA examination in September 2010. See September 2010 Audio VA Examination Report. Audiometric testing conducted during this examination produced the following results: PURETONE THRESHOLDS 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 dB 20 dB 20 dB 20 dB 20 dB Left Ear 10 dB 10 dB 10 dB 10 dB 10 dB PURETONE THRESHOLD AVERAGE Right Ear 20 dB Left Ear 10 dB SPEECH RECOGNITION Right Ear 94% Left Ear 100% Based on these results, it is clear the Veteran does not meet the auditory thresholds set forth in 38 C.F.R. § 3.385 for his right ear. Thus, no current disability has been established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that in the absence of proof of a current disability, there is no valid claim). Accordingly, the Board finds the preponderance of the evidence does not support his service connection claim for a hearing loss disability of the right ear. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). ORDER Service connection for a hearing loss disability of the right ear is denied. REMAND I. Service Connection for an Acquired Psychiatric Disorder The Veteran contends that he has an acquired psychiatric disorder, which stems from his service. See June 2006 Statement in Support of Claim; October 2017 Board Hearing Transcript at 3. A review of the medical records confirms that he has been diagnosed with multiple acquired psychiatric disorders, to include PTSD, major depressive disorder, anxiety, and mixed bi-polar disorder. See July 2010 VA Psychiatry Outpatient Evaluation and Management Note; August 2010 VA Social Work Note; April 2016 VA Mental Health Treatment Plan Interdisciplinary Note. In particular, the Veteran avows that his PTSD is related to his service aboard the USS Virginia during the bombing in Beirut, Lebanon. See June 2006 Statement in Support of Claim; see also October 2017 Board Hearing Transcript at 3. In the alternative, he asserts his PTSD could have been caused by a motor vehicle accident in service, during which he "busted his head and chin open". See October 2017 Board Hearing Transcript at 3; see also April 1985 Emergency Care and Treatment Note. The Board notes in a December 2010 VA Memorandum, the RO made a formal finding that the Veteran's claimed PTSD stressor could not be verified. Specifically, the RO concluded there was no evidence of "fear of hostile military or terrorist activity" consistent with the circumstances of his service. Moreover, the RO determined there was insufficient information to conduct a meaningful search of appropriate records. December 2010 VA Memorandum. However, a review of the Veteran's service department records confirms he served aboard the USS Virginia. More importantly, it shows his unit was awarded the Navy Unit Commendation for exceptionally meritorious service in support of the U.S. peace initiatives in Lebanon from May to November 1983. It recognized his unit performed difficult missions during a period of life threatening conditions, and displayed dedication in the face of hostile fire. It also acknowledged that his unit continued to fulfill their assigned mission as well as carry out rescue and evacuation efforts after suffering unprecedented personnel losses (approximately 330 killed or wounded) during the terrorist bombing of the 24th Marine Amphibious Unit Headquarters Building on October 23, 1983. Therefore, the evidence of record sufficiently verifies this in-service stressor. To date, the Veteran has not undergone a VA examination with respect to this claim. In light of the above, the Board finds a remand is necessary to obtain one. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). II. Service Connection for a Left Leg Disability The Veteran contends that he has a left leg disability due to his service. In this regard, the Veteran was first afforded a VA examination in November 2010. During the examination, he asserted he had arthritis in his left leg, caused by a fall he suffered in service, which resulted in back and left thigh injuries. Although the VA examiner found evidence of tenderness in the left knee upon examination, the VA examiner concluded the left femur was normal. Despite recognizing the claim was generally for arthritis of the left leg, no imaging study was obtained. The VA examiner went on to opine that it was less likely than not his current left femur complaints were caused by or otherwise related to his one-time diagnosis of musculoskeletal pain of the left thigh in service because there was insufficient evidence to support an association. However, the VA examiner did not specify a current diagnosis. Subsequently, the Veteran was examined by the VA in May 2011. See May 2011 General Medical VA Examination Report. At this time, he stated that his knee had been hurting since service. Upon reviewing an imaging study, the VA examiner diagnosed him with mild degenerative arthritis of the knees bilaterally. However, the VA examiner did not proffer a nexus opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). Following this VA examination, in an October 2016 Application for Disability Compensation and Related Compensation Benefits, the Veteran argued in the alternative that his claimed left knee disability was secondary to his service-connected low back strain. Thereafter, the Veteran underwent a VA examination in November 2016. See November 2016 Knee and Lower Leg Conditions VA Examination Report. At that time, the VA examiner acknowledged that he was diagnosed with a left knee strain in 2008. Notwithstanding an abnormal physical examination, the VA examiner noted that a contemporaneous imaging study indicated no abnormalities of the left knee. As a result, the VA examiner proceeded to opine that it was less likely than not his left knee condition was caused by his service-connected low back strain. In doing so, the VA examiner neglected to address the May 2011 VA examiner's conflicting finding of mild degenerative arthritis of the knee bilaterally. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Further, the VA examiner failed to address the issue of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In view of the above, the Board finds neither the November 2010, May 2011, nor November 2016 VA examinations is adequate, and a remand is necessary to obtain another VA examination. III. Service Connection for a Gastrointestinal Disability The Veteran contends that his GERD and helicobacter pylori stem from his service. See October 2009 Letter from the Veteran; May 2010 Statement in Support of Claim; October 2017 Board Hearing Transcript at 7-10. The Veteran was examined by the VA in November 2010 with respect to these claims. Following examination, the VA examiner confirmed he had a history of daily nausea and vomiting as well as episodic diarrhea. He was hospitalized recently in August 2010 for these symptoms and diagnosed with GERD and helicobacter pylori. After reaffirming these diagnoses, the VA examiner opined that it was less likely than not they were caused by or otherwise related to his service, explaining that his one-time episode of stomach pain in service was vague and did not provide enough information to associate with his current diagnoses. After a review of the Veteran's service treatment records (STRs), the Board find's the VA examiner's finding that he had a one-time episode in service is incorrect. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). He was diagnosed with gastroenteritis twice in service; first in May 1984 and another in August 1984. See May 1984 Chronological Record of Medical Care; August 1984 Chronological Record of Medical Care. Additionally, similar symptoms were recorded in January 1984 and May 1983. See January 1984 Emergency Care and Treatment (noted a diagnosis of resolved diarrhea); May 1983 Chronological Record of Medical Care (noted the Veteran's report of low back pain and nausea, and upon examination slight kidney pain). For this reason, the Board finds a remand is necessary to obtain an addendum VA medical opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate medical professional to determine the nature and etiology of his claimed acquired psychiatric disorder(s). After reviewing the complete record, the examiner should: a. Identify all current and prior diagnoses of an acquired psychiatric disorder. b. Reconcile all prior diagnoses of an acquired psychiatric disorder, to include PTSD, major depressive disorder, anxiety, and mixed bi-polar disorder, with the current findings. If any prior diagnosis cannot be reconciled, explain why. c. As to each diagnosis, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or otherwise related to his active duty service and explain why. As to a diagnosis of PTSD, the examiner should also discuss whether the claimed in service stressor(s) support the diagnosis and explain why. d. In rendering an opinion, the examiner should consider his relevant lay statements, to include his June 2006 Statement in Support of Claim and testimony during the October 2017 Board hearing. 2. Schedule the Veteran for an examination with an appropriate medical professional to determine the nature and etiology of his claimed left leg disability. After reviewing the complete record, the examiner should: a. Identify all current and prior diagnoses of a left leg condition. b. Reconcile all prior diagnoses of a left leg condition, to include degenerative arthritis, with the current findings. If any prior diagnosis cannot be reconciled, explain why. c. As to each diagnosis, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or otherwise related to his active duty service and explain why. d. As to any diagnosis that is not caused by or otherwise related to his active duty service, opine was to whether it is at least as likely as not (50 percent probability or greater) proximately due to or aggravated beyond its natural progression by his service-connected low back strain. The examiner is reminded that causation and aggravation are distinct concepts, and each must be addressed when proffering an opinion. e. In rendering an opinion, the examiner should consider his relevant lay statements, to include his statements during the November 2010, May 2011, and November 2016 VA examinations as well as his testimony during the October 2017 Board hearing. 3. Obtain an addendum medical opinion from an appropriate medical professional regarding the nature and etiology of the Veteran's claimed gastrointestinal disability(ies). After reviewing the complete record, the examiner should: a. Opine as to whether it is at least as likely as not (50 percent probability or greater) his GERD and/or helicobacter pylori is caused by or otherwise related to his active duty service and explain why. b. In rendering an opinion, the examiner should consider all relevant STRs, to include the May 1983 Chronological Record of Medical Care; January 1984 Emergency Care and Treatment; May 1984 Chronological Record of Medical Care; and August 1984 Chronological Record of Medical Care. c. In rendering an opinion, the examiner should also consider his relevant lay statements, to include his May 2010 Statement in Support of Claim and testimony during the October 2017 Board hearing. 4. Once each of the above requests has been completed, to the extent possible, readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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). ______________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs