Citation Nr: 18140321 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-07 441 DATE: October 2, 2018 ORDER Entitlement to service connection for a back disorder is denied. Entitlement to service aggravation for bilateral hearing loss is denied. Entitlement to service connection for a respiratory disorder, to include rhinitis, is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to a rating greater than 10 percent for a right knee disorder is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran is not claiming a back disorder. 2. Bilateral hearing loss was noted at service entry. 3. The Veteran’s preexisting bilateral hearing loss did not permanently increase in severity during service. 4. Service did not cause the Veteran's respiratory disorder. 5. Service caused the Veteran's PTSD. CONCLUSIONS OF LAW 1. The criteria for direct service connection for a back disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service aggravation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 3. The criteria for direct service connection for a respiratory disorder, to include, rhinitis, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for direct service connection for PTSD have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1975 to October 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of a regional Office (RO) of the Department of Veterans Affairs (VA). The Board has combined two appellate issues – service connection for a respiratory disorder and service connection for rhinitis – for expediency and based upon the Veteran's argument. Service Connection Direct Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Presumption of Soundness A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111 (2014). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b) (2016). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. Id. Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. Id. Issue 1: Entitlement to service connection for a back disorder. VA examined the Veteran in August 2015 for compensation purposes. The examiner reported that "the patient denies having any specific thoracolumbar back issues. His complaint is specific to his neck and does not wish to be evaluated for a thoracolumbar back complaint." No medical professional has diagnosed the Veteran with a back disorder – including the VA examiner – so the Board denies the appeal for failing to meet the first prong of a direct service connection claim. Issue 2: Entitlement to service aggravation for bilateral hearing loss. The Veteran contends that his preexisting bilateral hearing loss worsened (beyond the natural progression of the disease) during and since service separation. The Veteran was diagnosed with "moderate, high frequency hearing loss in the right ear and a severe, high frequency hearing loss in the left ear" during his induction physical in May 1975, according to the September 2012 VA compensation examiner. Review of the Veteran's physical confirms this statement. Therefore, his bilateral hearing loss was "noted" at entrance into service, and the presumption of soundness at entry into service does not attach. 38 U.S.C. § 1111. As the Veteran's pre-existing bilateral hearing loss was noted at the time of entry into service, service connection for bilateral hearing loss may be granted only if the Veteran shows by preponderance of the evidence that the bilateral hearing loss worsened in severity beyond its natural progression during service, i.e., was aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. If any in-service aggravation of a preexisting disorder noted at service entrance is shown, the in-service evidence of aggravation is considered sufficient to allow for service connection unless there is clear and unmistakable evidence that the disorder was not permanently aggravated beyond the natural progression of the condition during service. 38 C.F.R. § 3.306. In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase, permanent in nature, in the disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993). The primary question then is whether the preexisting bilateral pes planus is shown to have increased in severity during active service. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). The evidence does not show that the Veteran's preexisting bilateral hearing loss that was noted at entrance into service increased in severity during service. First, the Veteran has not submitted any evidence to suggest service aggravated his bilateral hearing loss. Second, the September 2012 VA examiner noted the Veteran had levels of hearing loss bilaterally in his October 1981 separation examination such that he "did not experience any significant threshold shifts in either ear when comparing his exit exam to his entrance exam." Based on the foregoing, the Veteran's bilateral hearing loss did not increase in severity during service. Because the evidence does not demonstrate worsening of bilateral hearing loss during service (preponderance of the evidence is against a finding of worsening during service), the presumption of aggravation does not arise in this case, so the burden on VA to rebut the presumption (by clear and unmistakable evidence) does not arise. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Issue 3: Entitlement to service connection for a respiratory disorder, to include rhinitis. The Veteran has a respiratory disorder, and VA found that he was likely exposed to asbestos during service, so he has satisfied the first and second prongs of a direct service connection claim. The appeal turns on the third prong of a direct service connection claim – medical nexus. VA examined the Veteran for compensation purposes in September 2012, but this examiner did not opine on the nexus between the Veteran's asbestos exposure and his respiratory disorder. Therefore, VA requested a supplemental opinion in August 2015. The August 2015 reviewer provided a negative nexus. She grounded her opinion in a) the Veteran's "long history of smoking (age 19-45 and then off and on after that time)," and b) "imaging show[ing] nothing suggestive of asbestosis (no calcified pleural plaques)." Accordingly, "long term tobacco abuse is the most likely reason the veteran has subjective shortness of breath that responds to his inhalers." No other medical evidence in the claims file relates to nexus, so the Veteran has failed to satisfy the third prong of a direct service connection claim. Accordingly, his appeal is denied. Issue 4: Entitlement to service connection for posttraumatic stress disorder (PTSD). The Veteran has PTSD, and multiple VA psychiatric personnel have linked it to service, so the Veteran has satisfied the first and third prongs of a direct service connection claim. This appeal turns on the second prong of a direct service connection claim – in-service incident. The Veteran contends, as seen in a December 2012 VA PTSD Assessment and Treatment Plan, that he was the victim of racial intimidation. Specifically, he reported that "a group of white shipmates would verbally and physically assault him by 'trying to electrocute [him], tying [him] up, and beating on [him].'" He likewise reported that "he experienced significant fear and terror for his life when these events occurred." Based on these statements, VA clinicians diagnosed him with PTSD and enrolled him in a PTSD therapy group. Pursuant to 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, "evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident." These sources include records from "mental health counseling centers" such as those described above. Accordingly, the undersigned finds that the Veteran has established the second prong of a direct service connection claim. The Veteran has satisfied all three prongs of a direct service connection claim, so the Board will grant the appeal. REASONS FOR REMAND Remand is warranted because the Veteran contends his knee disorder has worsened since his last VA examination in 2015. Remand is also warranted for an addendum to the August 2015 VA examination for the Veteran's claimed neck disorder. Specifically, the examiner provided a negative nexus between the in-service trauma and the neck disorder stating that degenerative spondylosis has "multifactorial etiologies." He also noted that a "significant portion of the population develops" the disorder without a history of specific trauma. Notwithstanding these generalities, the examiner did not explain why – in this Veteran's case – that his trauma was less likely than not the cause of his neck disorder. Clarification is needed. Last, the TDIU is intertwined with the grant of service connection for PTSD. VA needs to implement this grant before the Board can determine its impact on the TDIU issue. The matters are REMANDED for the following action: 1. Schedule a VA examination to determine the current severity of the Veteran's right knee disorder. 2. Return the claims file to the examiner who conducted the 2015 neck disorder examination. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with this addendum opinion. The examiner must then answer the following: Why, in this specific case, is it at least as likely as not that the Veteran's in-service trauma did not cause his neck disorder? The Board is aware of the statistics cited in 2015 regarding degenerative spondylosis in the general population. However, they are inadequate to explain why they apply or do not apply to the Veteran's case. If the 2015 examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. 3. Implement the Board's grant of service connection for PTSD. Undertake any development necessary to determine what impact, if any, it has on the Veteran's TDIU claim. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sopko