Citation Nr: 18140892 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-08 755 DATE: October 9, 2018 ORDER Entitlement to service connection for a spinal disability is denied. Entitlement to service connection for a right ear hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for hypertension is denied. Entitlement to a compensable rating for a left ear hearing loss disability is denied. REMANDED Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A spinal disability was not manifest in service nor was it demonstrated within the one year following separation from service, nor has it been shown to be related to service. 2. The Veteran does not have a right ear hearing loss disability of such severity to constitute a disability for VA compensation purposes. 3. Tinnitus was not manifest in service and is unrelated to service. 4. The evidence of record does not indicate that the Veteran has been diagnosed with sleep apnea. 5. Hypertension was not manifest in service nor was it demonstrated within the one year following separation from service, nor has it been shown to be related to service. 6. The Veteran’s service-connected left ear hearing loss, at its worst, is productive of level I hearing acuity in the left ear. CONCLUSIONS OF LAW 1. A spinal disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. A right ear hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 3. Tinnitus was not incurred in or aggravated by service and is not attributable to service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 4. A claimed sleep disability was not incurred in or related to active service. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. 5. Hypertension was not incurred in or aggravated by service, is not attributable to service, and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 6. The criteria for entitlement to a compensable disability rating for the Veteran’s service-connected left ear hearing loss disability have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to March 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A claim for a TDIU is part of an increased rating claim when such a claim is raised by the record. See Rice v. Shinseki, App. 447 (2009). Here, in a September 2014 VA Form 21-4138, the Veteran stated that his PTSD symptoms affect his ability to work. As the record now raises a question of whether the Veteran is unemployable due his service-connected disability, TDIU is part of the increased rating matter before the Board. Further, the issue of entitlement to service connection for vision problems has been raised by the record in a May 2014 claim, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). Service Connection In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (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 the so called ‘nexus’ requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).] 1. Entitlement to service connection for a spinal disability In the case of any veteran who served for ninety (90) days or more during a period of war - a chronic disease becoming manifest to a degree of ten (10) percent or more within one (1) year from the date of separation from such service shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record evidence of such disease during the period of service. Arthritis is listed as a chronic disease. 38 U.S.C. § 1112 (a)(1). Here, there is evidence of a current disability. A February 2014 lumbar spine x-ray revealed multilevel degenerative changes at L4-L5. The Veteran was ordered to have an MRI in April 2014 in response to complaints of lumbar spine radiculopathy. However, service treatment records do not show a diagnosis of a back disability nor are there any complaints of a back disability for many years after service. The Veteran has not pointed to any evidence which the Board may relate his current spinal disability to his active service. Further, the record does not reflect a diagnosis of arthritis during the one-year presumptive period after the Veteran’s separation from service. Service connection is therefore not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). As the preponderance of the evidence is against the claim for service connection for spinal disability, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a right ear hearing loss disability For purposes of applying the laws administered by VA, impaired hearing will be 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 threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The evidence does not reflect that the Veteran suffers from impaired hearing in his right ear of sufficient severity to qualify for disability compensation. The Veteran was afforded a VA examination in January 2015. The examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 20 30 35 The Veteran’s Maryland CNC word recognition score was 100 percent in the right ear. There is no evidence that the Veteran’s auditory thresholds are 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz. Nor is there any evidence that the Veteran’s auditory thresholds are 40 decibels in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz. Finally, there is no evidence that the Veteran’s speech recognition scores, using the Maryland CNC Test, are less than 94 percent. Since having a current disability is the first element to establishing service connection, and the Veteran does not have a right ear hearing disability, for VA purposes, there is no need to consider the remaining elements under Shedden. Moreover, presumptive service connection is not warranted because the Veteran has not shown he has a diagnosis of a chronic disease becoming manifest to a degree of 10 percent of more within one 1 year from the date of separation. The Board concludes that the evidence does not support the claim for service connection and there is no doubt to be resolved. 3. Entitlement to service connection for tinnitus The Veteran contends, without specificity, that he is entitled to service connection for tinnitus. For the reasons explained below, the Board finds that although the Veteran has a diagnosis of tinnitus, service connection is not warranted. Service treatment records are silent for complaints of tinnitus. Post-service treatment records are also silent for complaints of tinnitus. The Veteran was afforded a VA audiological examination in January 2015 where the examiner opined that the Veteran’s tinnitus was less likely than not caused by service because the Veteran reported brief tinnitus which “occurs twice a month for a few seconds.” The examiner opined that this type of symptom is common in the general population and is not typical of noise-induced tinnitus. The examiner also explained that the Veteran has a long-term history of significant occupational noise exposure (truck driver). The Board finds the January 2015 VA examiner’s opinion to be probative in nature. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner reviewed the Veteran’s medical history and considered his statements before rendering an opinion. The Veteran has not provided any specific details or reasons why he believes his current tinnitus is related to service. Therefore, the Board does not assign any probative value to the Veteran’s claim regarding etiology. The sole credible, competent evidence of record regarding a nexus to service, then, is the negative medical opinion of the VA examiner. The preponderance of the evidence is, therefore, against the claim. There is no doubt to be resolved. Service connection for tinnitus is not warranted. 4. Entitlement to service connection for sleep apnea The Veteran contends, without specificity, that he is entitled to service connection for sleep apnea. Congress has specifically limited entitlement to service connection for disease or injury to cases where such have resulted in a disability. See 38 U.S.C. § 1110. Hence, in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A January 2014 VA ophthalmologic outpatient treatment note indicates that the Veteran does not have a diagnosis of sleep apnea. A May 2014 VA ophthalmologic surgery note indicates that the Veteran does not have sleep apnea. There is evidence that the Veteran experiences sleep problems, diagnosed as insomnia. Specifically, the Veteran stated in an August 2014 VA Form 21-4138 that he has difficulty sleeping a full night due to flashbacks related to his service-connected PTSD. “The hours I sleep at night during the week I can count on my hands.” However, there is no evidence of sleep apnea. In the absence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, entitlement to service connection for a sleep apnea is not warranted. 5.Entitlement to service connection for hypertension Hypertension, considered as a “cardiovascular-renal disease,” is a “chronic disease” listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive provisions of 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. VA treatment records indicate that the Veteran carries a diagnosis of hypertension. However, service treatment records do not show a diagnosis of hypertension. The Veteran has not pointed to any evidence which the Board may relate his current hypertension to his active service. Further, the record does not reflect a diagnosis of hypertension during the one-year presumptive period after the Veteran’s separation from service. Service connection is therefore not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). As the preponderance of the evidence is against the claim for service connection for hypertension, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Entitlement to a compensable rating for a left ear hearing loss disability The Veteran’s left ear hearing loss disability is rated under DC 6100. Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The current version of the Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of § 3.383 of this chapter. See 38 C.F.R. 4.85(f). Here, the Veteran was afforded a VA examination in January 2015. The examination revealed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 LEFT 25 25 45 45 The puretone threshold average was 35 dB for the left ear. The Veteran’s Maryland CNC word recognition score was 100 percent in the left ear. Such findings equate to level I hearing for the left ear. As noted above level I hearing will be assigned for the non-service-connected right ear. See 38 C.F.R. §§ 4.85, Table VI, § 4.86 (a). Applying Table VII, DC 6100, this equates to a noncompensable rating. In addition to providing objective test results, a VA audiologist must fully describe the effects of a disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). At the January 2015 VA examination, the Veteran reported no impact on ordinary conditions of daily life. Here, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered. 38 C.F.R. § 4.85, Tables VI, VIA, and VII, DC 6100. Applying the audiological test results to the regulatory criteria, the Board concludes that the preponderance of the evidence is against entitlement to an increased rating for any period of time that is covered by this claim. There is no reasonable doubt to be resolved. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. The Veteran contends that his PTSD symptoms are more severe than the 50 percent rating currently assigned. In a September 2014 correspondence, he alleged that he was prescribed medication to manage his symptoms but he still experiences flashbacks and nightmares. He also reports that he has difficulty sleeping; symptoms of depression, anxiety, anger, frustration and difficulty focusing. He was afforded a VA PTSD examination in January 2015 to assess the current severity of his PTSD. However, the examiner elicited very little information from the Veteran and documented few symptoms the Veteran previously admitted to experiencing. The Board finds that the January 2015 VA examination report does not accurately reflect the current severity of the Veteran’s PTSD symptoms and therefore remands the matter for another examination. The examiner is also asked to address any functional impact of the Veteran’s PTSD. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran contends that his PTSD symptoms prevent him from obtaining and maintaining substantially gainful employment. Accordingly, the claims for entitlement to an increased rating for PTSD and TDIU are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, the claim for a TDIU must be remanded pending the development and readjudication of the increased rating appeal. Finally, as the Veteran appears to regularly seek treatment at the VA, all recent VA treatment records should be obtained and associated with the electronic claims file, while the case is in remand status. The matters are REMANDED for the following action: 1. Obtain VA treatment records since May 2014 and associate them with the electronic claims file. 2. Provide the Veteran with appropriate notice of VA’s duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. 3. Then, schedule the Veteran for a psychiatric examination in order to determine the severity of his service-connected PTSD. The examiner should also indicate the functional impairment that results from the Veteran’s service-connected PTSD in terms of occupational functioning and daily activities. The supporting rationale for all opinions expressed must be provided. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville, Counsel