Citation Nr: 18141101 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-29 907 DATE: October 9, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for a respiratory disorder is denied. Service connection for a dental disorder for purposes of compensation and eligibility for VA outpatient dental treatment is denied. REMANDED Service connection for a spine disorder is remanded. Service connection for a skin disorder (claimed as rashes) is remanded. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran’s tinnitus did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a respiratory disorder. 4. The preponderance of the evidence of record is against finding that the Veteran has a dental disorder for which service-connected compensation is payable or VA outpatient dental treatment is warranted. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.385. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 3. The criteria for service connection for a respiratory disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria to establish service connection for a dental disorder and the criteria for eligibility for VA outpatient dental treatment are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to August 1967. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds that the preponderance of the evidence is against service connection for bilateral hearing loss, tinnitus, a respiratory disorder, and a dental disorder (to include VA outpatient dental treatment); the claims must each be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Bilateral Hearing Loss The Veteran contends that his hearing loss is due to acoustic trauma in service from weapons fire. The Board concludes that, while the Veteran has a current diagnosis of hearing loss for VA purposes, see 38 C.F.R. § 3.385, and evidence suggests that the Veteran was exposed to acoustic trauma in service; the preponderance of the evidence weighs against finding that the Veteran’s hearing loss is etiologically related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Sensorineural hearing loss is a chronic disease that will be presumed related to service if it was noted as chronic in service; or, if it manifested to a compensable degree within one year following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see also 38 C.F.R. § 3.385 (defining hearing loss for VA purposes). The Board concludes that while the Veteran has sensorineural hearing loss, it was not chronic in service or manifested to a compensable degree in service or within the one year presumptive period, and continuity of symptomatology has not been established. During service, the Veteran’s hearing was within normal limits. The Veteran does not assert and the evidence does not indicate that the Veteran had a continuity of symptoms following service. The medical evidence of record does not reveal that the Veteran had a formal diagnosis of sensorineural hearing loss until the June 2014 VA audiological examination. This means that the Veteran was not diagnosed with hearing loss until almost 50 years after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Service connection for sensorineural hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s hearing loss and military service. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The June 2014 VA examiner opined that the Veteran’s hearing loss was not at least as likely as not related to service. She opined that the etiology of the Veteran’s current hearing loss was more likely due to presbycusis (i.e., hearing loss caused by natural aging) and noise exposure after military service. She explained that hearing loss does not have a delayed onset. The rationale was that the Veteran’s service treatment records showed normal hearing upon military entry and separation examinations, and at separation the Veteran reported no hearing problems. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that the most probative evidence of record is the June 2014 VA examination, as it is the only medical opinion of record. Consequently, the Board adopts the opinion of the VA examiner, who ultimately found that the Veteran’s hearing loss was not related to military service. Neither the Veteran nor his representative have presented or identified any contrary medical opinion or treatment that supports his claim. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Similarly, while the Veteran believes that his hearing loss is related to military service, he is not competent to provide a nexus opinion in this case. The Veteran, as a layperson, is not competent to speak to such medically complex matters, such as the etiology of the claimed disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the opinion of the June 2014 VA examiner. 2. Tinnitus The Veteran contends that his tinnitus is due to acoustic trauma in service from weapons fire. Tinnitus is a chronic disease that will be presumed related to service if it was noted as chronic in service; or, if it manifested to a compensable degree within one year following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Board concludes that while the Veteran has tinnitus, it was not chronic in service or manifested to a compensable degree in service or within the one year presumptive period, and continuity of symptomatology has not been established. During service, there were no reports of tinnitus. The Veteran does not assert and the evidence does not indicate that the Veteran had an onset of tinnitus one year after service, nor experienced a continuity of symptoms following service. During the June 2014, VA audiological examination the Veteran reported that the onset of his tinnitus was 15 to 20 years ago. The Veteran is competent to report the onset of his tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). As a result, due to the Veteran’s credible lay reporting, the onset of his tinnitus falls well outside of any presumptive considerations. Service connection for tinnitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s tinnitus and military service. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The June 2014 VA examiner opined that the Veteran’s tinnitus was not at least as likely as not related to service. She explained that tinnitus does not have a delayed onset. The rationale was that the Veteran’s service treatment records showed normal hearing upon military entry and separation examinations, and no permanent standard threshold shifts bilaterally. She stated that the medical literature does not support a basis for the existence of delayed-onset tinnitus, and that tinnitus may be caused by or accompanied by noise-induced hearing loss or presbycusis hearing loss. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that the most probative evidence of record is the June 2014 VA examination, as it is the only medical opinion of record. Consequently, the Board adopts the opinion of the VA examiner, who ultimately found that the Veteran’s hearing loss was not related to military service. Neither the Veteran nor his representative have presented or identified any contrary medical opinion or treatment that supports his claim. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Similarly, while the Veteran believes that his tinnitus is related to military service, he is not competent to provide a nexus opinion in this case. The Veteran, as a layperson, is not competent to speak to such medically complex matters, such as the etiology of the claimed disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran is competent to diagnosis himself as having tinnitus; which he has indicated began after service. He is not competent, as a layperson, however, to state that the post-service experience of tinnitus is due to in-service noise exposure. Consequently, the Board gives more probative weight to the opinion of the June 2014 VA examiner. 3. Respiratory disorder The Veteran has filed a claim for service connection for “respiratory issues.” He has, however, made no specific allegations regarding an in-service event or injury or current symptoms of a respiratory disorder. The Board concludes that the Veteran does not have a current diagnosis of a respiratory disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). A claim for service connection requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The claim must be accompanied by evidence demonstrating the presence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007); Romansky v. Shinseki, 26 Vet. App. 289 (2013) (regarding existence of a current disability in relation to filing of a claim). VA treatment records, associated with the claims file, suggest no diagnosis of a respiratory disorder during the pendency of the appeal. While the Veteran believes he has respiratory issues, he is not competent to provide a diagnosis in this case as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to a medical diagnosis. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his lay opinions do not constitute competent medical evidence and lacks probative value. This is especially true when weighed against VA treatment records which show no objective findings of respiratory symptoms, such as shortness of breath, coughing, and chest tightness. There also is no competent evidence of a possible relationship to service. The Veteran has made no specific allegations as to how or why he believes he has respiratory issues related to service. There is no suggestion in the medical evidence of a diagnosed respiratory disorder related to service, nor has the Veteran stated that a medical professional has indicated such. Here, the Veteran has filed a claim with a generalized allegation that he has respiratory issues related to service. However, he is not competent to render such an opinion. That issue presents a complex medical question requiring the opinion of a medical professional. Moreover, as there is no indication of a current respiratory disorder, the threshold in McLendon has not been met. While McLendon establishes a low threshold, the holding makes abundantly clear that there is a threshold that must be met. With no indication of a currently diagnosed respiratory disorder, the Board finds that the Veteran’s lay contentions alone are insufficient to warrant a VA examination in this case. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 4. Dental disorder The Veteran has filed a claim for dental issues. He has, however, made no specific allegations regarding what type of dental disorder he has. Dental disorders are treated differently than other medical disorders in the VA benefits system. To establish service-connected compensation benefits, the Veteran would need to exhibit additional disability such as those set forth in 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916, including various types of oral nonunion, malunion, and loss of bone. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities. They are only to be considered service-connected for the purpose of establishing eligibility for outpatient dental treatment. 38 C.F.R. § 3.381. Additionally, the legal authority provides for various categories of eligibility for VA outpatient dental treatment. See 38 U.S.C. § 1712; 38 C.F.R. §§ 17.161; see also Mays v. Brown, 5 Vet. App. 302, 306 (1993) (claim for service-connected disability compensation for a dental disorder may also be treated as a claim for VA outpatient dental treatment). The Veteran has not provided any statements regarding what specific dental disorder he has as would be needed for the Board to properly adjudicate this claim. Other than filing the claim, the Veteran has made no specific allegations as to how or why he believes he has a dental disorder related to service or subject to VA outpatient dental treatment. There is no suggestion in the medical evidence that any dental disorder possibly related to service and the Veteran’s service treatment records are silent as to a dental problem during service. Essentially, the Veteran has filed this claim with a generalized allegation, which is insufficient for the Board to ascertain what relief the Veteran is seeking under the applicable statutes and regulations. Under these circumstances, the Veteran has failed to state a claim of entitlement for a dental disorder for compensation purposes or for VA outpatient dental treatment, upon which relief could be granted. As such, the claim lacks legal merit and must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 6. Spine disorder The evidence of record indicates a current diagnosis of degenerative disc disease and degenerative joint disease of the lumbar spine. The Veteran contends that his spine disorder is due to a fall in service. Therefore, he must be given a VA examination for an opinion on whether his current spine diagnoses are related to his service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further notes that VA treatment records report that the Veteran had a post-military back injury while working in a steel plant lifting heavy materials. This incurrent injury should also be considered and discussed by the examiner. 7. Skin disorder (claimed as rashes) The evidence of record indicates a current diagnosis of dermatitis. The Veteran contends that he has rashes due to herbicide exposure. Therefore, he must be given a VA examination for an opinion on whether his current rashes (to include dermatitis) are related to his service. See McLendon, supra. 8. PTSD Conflicting findings between the May 2014 VA psychological examination and February 2016 private DBQ are suggestive of a material change in the Veteran’s PTSD. By way of example only, the May 2014 VA examination found that the Veteran’s symptoms are not severe enough to interfere with occupational and social functioning, while the February 2016 private DBQ found occupational and social impairment with deficiencies in most areas. The February 2016 private examiner further opined that the Veteran’s PTSD prevents him from maintaining substantially gainful employment. When the evidence indicates that there has been a material change in the disability and the evidence of record is too old, or that the current rating may be incorrect, VA has a duty to conduct a new examination. See 38 C.F.R. § 3.327; see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). This is especially true since the 2016 private DBQ indicated that the Veteran has been receiving treatment at the VA for PTSD. Such treatment records have not been associated with the claims file nor reviewed by either examiner in reaching their medical opinions. See 38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, on remand a new examination should be afforded, to include consideration of the occupational effects of the Veteran’s PTSD. Moreover, as the record reflects the Veteran has received treatment at VA, any outstanding and current ongoing medical records should also be obtained. 9. Hypertension This claim is remanded in order to obtain an opinion as to whether the diagnosed hypertension is attributable to service, to include the conceded herbicide exposure. 10. TDIU As stated above, the February 2016 private examiner opined that the Veteran’s PTSD prevents him from maintaining substantially gainful employment. This issue is considered part and parcel of the Veteran’s increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, TDIU is inextricably intertwined with the increased rating claim for PTSD, and the Board finds that adjudication of TDIU must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, at the time of this decision, the Veteran does not meet the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). As a result, the Board also finds that adjudication of TDIU must be placed on hold until the AOJ adjudicates the above remanded claims and then TDIU can be adjudicated. The matters are REMANDED for the following action: 1. Obtain up to date VA treatment records. 2. After completion of (1), schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lumbar spine disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including a fall during service. The Board points the examiner’s attention to a July 2008 VA primary care note indicating that the Veteran had a back injury after military service while working in a steel plant lifting heavy materials. The examiner is advised to address this post-service injury in his/her report. 3. After completion of (1), schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed skin disorder known to be manifested by rashes. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicides. The Board informs the examiner that it is not sufficient to provide a negative opinion based on the fact that a claimed condition is not listed among the presumptive conditions set forth in 38 C.F.R. § 3.309(e). 4. After completion of (1), schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of diagnosed hypertension. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicides. The Board informs the examiner that it is not sufficient to provide a negative opinion based on the fact that a claimed condition is not listed among the presumptive conditions set forth in 38 C.F.R. § 3.309(e).   5. After completion of (1), schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. The examiner should discuss the impact of the PTSD disability on the Veteran’s employability. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel