Citation Nr: 18141175 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-08 751 DATE: October 9, 2018 ORDER The application to reopen the claim for service connection for right lower extremity radiculopathy is granted. The application to reopen the claim for service connection for left lower extremity radiculopathy is granted. Entitlement to service connection for a left ear hearing loss disability is granted. Entitlement to service connection for a right ear hearing loss disability is denied. Entitlement to service connection for right lower extremity radiculopathy to include as due to service-connected disease or injury is granted. Entitlement to service connection for left lower extremity radiculopathy to include as due to service-connected disease or injury is granted. Entitlement to service connection for a lumbar spine disability is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed February 2013 rating decision, the RO denied the Veteran’s claim of service connection for right lower extremity radiculopathy. 2. The evidence received since the February 2013 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for right lower extremity radiculopathy. 3. In an unappealed February 2013 rating decision, the RO denied the Veteran’s claim of service connection for left lower extremity radiculopathy. 4. The evidence received since the February 2013 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for left lower extremity radiculopathy. 5. A left ear hearing loss disability had its onset in service. 6. The Veteran does not have a right ear hearing loss disability. 7. Lumbar pathology with lower extremity radiculopathy is due to service. CONCLUSIONS OF LAW 1. The February 2013 rating decision denying service connection for right lower extremity radiculopathy is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Since the February 2013 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for right lower extremity radiculopathy; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The February 2013 rating decision denying service connection for left lower extremity radiculopathy is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 4. Since the February 2013 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for left lower extremity radiculopathy; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. A left ear hearing loss disability was incurred in active duty. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 6. A right ear hearing loss disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 7. Lumbar pathology with lower extremity radiculopathy was incurred in wartime service. 38 U.S.C. § 1110 (2012).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1973 to April 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2013 and May 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). With regard to the Veteran’s acquired psychiatric disorder claim, the Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any psychiatric disability that may reasonably be encompassed by a veteran’s description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A review of the record reveals that the Veteran has been diagnosed with PTSD and depressive disorder. In light of the Court’s holding in Clemons, the Board has recharacterized the Veteran’s claim as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Applications to reopen right and left lower extremity radiculopathy Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(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, 1167 (Fed.Cir. 2004). For certain chronic disease, including organic disease of the nervous system, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. “New” evidence means evidence not previously submitted to the agency decision-maker. “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 prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2017). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). The RO denied service connection for right and left lower extremity radiculopathy in a February 2013 rating decision on the basis that there was no evidence that these disabilities were incurred in or caused by service. The Veteran did not appeal the February 2013 rating decision and new and material evidence was not associated with the claims folder within one year of the denial; therefore, it became final. At the time of the prior final rating decision in February 2013, the record in pertinent part included the Veteran’s service treatment records and postservice treatment records as well as a VA examination report dated July 2012. The Veteran’s service treatment records were absent complaints of or treatment related to radiculopathy of the lower extremities. He reported during the July 2012 VA examination report that his in-service duties as a helicopter pilot caused injury to his back which in turn caused radiating pain down his extremities. As the February 2013 rating decision is final, new and material evidence is therefore required to reopen the claims. In reviewing the evidence added to the claims folder since the February 2013 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran’s claims. Specifically, the medical evidence now indicates that the Veteran has right and left lower extremity radiculopathy that is related to his service. In this regard, the Veteran submitted a private treatment report dated May 2014 from P.Y., DC that notes the Veteran has right and left leg femoral and sciatic radiculopathy that is related to service. As indicated above, the Veteran’s previous claims were denied because there was no evidence that he had right and/or left lower extremity radiculopathy that was due to service. As the new evidence now suggests such nexus, the Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claims. As new and material evidence has been received, the claims for service connection for right and left lower extremity radiculopathy are reopened. Service connection for left ear hearing loss disability The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2017). For the purposes of applying the law administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds 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. See 38 C.F.R. § 3.385 (2017). The Veteran contends that he has a left ear hearing loss disability that was incurred during service, specifically from exposure to noise from performing his duties as a helicopter pilot as well as from firing weaponry. See, e.g., a March 2015 VA examination report. Although the Veteran’s service treatment records are absent complaints of or treatment related to hearing loss and further reveal normal audiograms, the Board notes that the Veteran’s personnel records document his service as a helicopter pilot as well as training with the firing of weaponry and therefore finds that the Veteran’s report of in-service noise exposure is credible and consistent with the record. The Board further notes that during the March 2015 VA examination, the Veteran reported the in-service noise exposure and indicated a continuity of hearing problems since service. Moreover, he was assessed with a left ear hearing loss disability for VA evaluation purposes. Specifically, the audiological examination showed results of 55 dB at 3000 Hz and 4000 Hz. 38 C.F.R. § 3.385. As will be discussed below, the Board finds that the most probative evidence of record demonstrates that the Veteran currently has a left ear hearing loss disability that manifested during his active duty. A probative medical opinion is of record concerning the issue of nexus for the Veteran’s left ear hearing loss disability in the form of a March 2015 VA Disability Benefits Questionnaire (DBQ). Specifically, the VA examiner reviewed the Veteran’s medical history to include the Veteran’s in-service noise exposure. After examination of the Veteran and consideration of his medical history, the VA examiner concluded that it is at least as likely as not that the Veteran has a left ear hearing loss disability that was incurred in service. The examiner’s rationale for his conclusion was based on his finding that although the Veteran’s service treatment records did not reveal any significant changes in hearing thresholds bilaterally, the latest hearing evaluation in the service treatment records was in 1973. The examiner further noted that the Veteran separated from service in 1979. Moreover, the examiner reported that the Veteran’s hearing loss configuration in the left ear is consistent with noise exposure. In this regard, the examiner noted the Veteran’s report of in-service noise exposure from performing his duties as a helicopter pilot and firing weaponry which the Board has found credible. In this case, the Board finds that the most probative evidence supports a finding that the Veteran currently has a left ear hearing loss disability that had its onset during the Veteran’s service. The Board finds the March 2015 VA DBQ report to be of great probative value as the opinion was based on a thorough consideration of the Veteran’s medical history. Accordingly, there is a competent and credible basis to conclude that the Veteran’s current left ear hearing loss disability is caused by active duty. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Therefore, service connection for a left ear hearing loss disability is warranted. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection for a right ear hearing loss disability The Veteran contends that he has a right ear hearing loss disability related to his service, to include from noise exposure from performing his duties as a helicopter pilot and firing weaponry. As discussed above, the Board finds the Veteran’s report of in-service noise exposure to be credible and consistent with the record. The evidence of record establishes that the Veteran does not have a current right ear hearing loss disability for VA evaluation purposes. The Veteran was afforded VA examination for his claimed right ear hearing loss disability in March 2015. The audiological examination report indicates puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 35 35 Speech discrimination score at that time was 96 percent in the right ear. The March 2015 VA examination was based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran’s entire medical history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). As discussed above, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds 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. See 38 C.F.R. § 3.385 (2017). The competent medical evidence of record, to include the March 2015 VA examination report, therefore does not demonstrate that these criteria have been met with respect to the Veteran’s claimed right ear hearing loss disability. Although the VA examiner noted the Veteran has hearing loss in the right ear, the VA examination report does not include threshold findings (from 500-4000 Hertz) exceeding 40 dB in the right ear and the Veteran’s puretone thresholds did not average 26 dB or more over any three frequencies (from 500-4000 Hertz) in the right ear. Likewise, the speech recognition score was not less than 94 percent in the right ear. There is no medical evidence to the contrary which establishes the criteria necessary for a finding of a right ear hearing loss disability for VA rating purposes. Based on these findings, the Board concludes that the evidence of record demonstrates that the Veteran does not have a hearing loss disability. Although there is a decrease in acuity, such decrease does not rise to the level of disability. The Board acknowledges a May 2014 private treatment report from P.Y., DC that indicates the Veteran has right ear hearing loss that is related to service. However, P.Y., DC did not provide any audiological testing of the Veteran’s right ear that would document a right ear hearing loss disability for VA evaluation purposes. As such, the Board finds that the May 2014 private treatment report from P.Y., DC to be of no probative value with respect to whether the Veteran has a current right ear hearing loss disability for VA evaluation purposes. The Board has considered the Veteran’s statements that he has hearing loss in his right ear. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, the lay evidence is lacking in detail to support the conclusion that there is a right ear hearing loss disability for VA purposes. His lay statements, standing alone, cannot establish the presence of disability in accordance with regulations. The presence of disability may only be established by particular testing. In this instance, the Board concludes that the most probative evidence establishes that the Veteran does not have a right ear hearing loss disability for VA purposes. The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, in the absence of current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no disability that resulted from a disease or injury. Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for a right ear hearing loss disability under any theory of entitlement and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Lumbar spine with radiculopathy With respect to the Veteran’s claims of service connection for a lumbar spine disability and right and left lower extremity radiculopathy, the Veteran contends that he has a lumbar spine disability and right and left lower extremity radiculopathy that are related to service, in particular from injury to his back from performing his duties as a helicopter pilot which in turn caused radiating pain down his extremities. See, e.g., a July 2012 VA examination report. According to his DD Form 214, the Veteran’s military occupational specialty (MOS) in service was a pilot and he completed helicopter pilot training. He has also contended that the right and left lower extremity radiculopathy is secondary to the lumbar spine disability. The Veteran submitted a private treatment report dated May 2014 from P.Y., DC who reported that the Veteran has degenerative joint disease and osteoarthritis of the lumbar spine as well as right and left leg femoral and sciatic radiculopathy that are related to service and further noted that the Veteran sustained injury to his back from performing his duties as a helicopter pilot. Also, a VA examiner concluded in a July 2012 report that it is less likely than not that the Veteran’s lumbar spine disability diagnosed as thoracolumbar degenerative disc disease is related to service but their rationale was speculative in nature. Here, we accept that rough landings are consistent with the nature and circumstances of service as a helicopter pilot. Although both opinions are weak in reasoning, the private opinion is more convincing. Service connection for the lumbar pathology with radiculopathy as a residual of injury is granted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder as well as entitlement to TDIU are remanded. With respect to the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, the Veteran contends that he has acquired psychiatric disorder to include PTSD that is related to his service. Specifically, the Veteran reported three stressful incidents during service that caused his psychiatric disorder. First, in March 1978, while stationed in Santa Ana, California and assigned a test flight on a helicopter that came out of maintenance for repair, the helicopter caught fire. The Veteran received first degree burns on his face and he had to jump out of the helicopter. Second, in June 1977 when stationed in Palms, California, the Veteran was flying at night when one of his engines shut down due to sand getting into the engine. He had to make a forced landing at night into a desert with no radar. Third, in July 1978 while stationed at Santa Ana, a Lt. Brennan who was the Veteran’s best friend crashed his plane into the San Bernardino mountains. See, e.g., a statement from the Veteran dated July 2011. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). Here, the record contains medical diagnoses of PTSD as well as a link established by medical evidence between this diagnosis and a reported in-service stressor. See a private treatment record dated June 2014 from W.A., Psy.D. The Veteran’s service personnel records show via his DD 214 that he completed flight training and helicopter training. Based on this evidence as well as the Veteran’s report of specific dates of the alleged incidents, an attempt should be made to verify the claimed stressors. Although a request was sent to the Department of the Navy to verify the Veteran’s stressor of the death of Lt. Brennan, a response dated March 2016 revealed that insufficient information was provided to verify the claimed stressor. However, a note from the Department of the Navy stated that if the Veteran provided the first name of Lt. Brennan, the type of aircraft he flew, or the bureau number of the airplane, another agency may be able to verify the incident. The Board observes that the Veteran was not notified by the RO of the negative response from the Department of the Navy. As such, in addition to verifying the Veteran’s stressors with the Joint Services Records Research Center (JSRRC), the Veteran should also be contacted to provide the information noted by the Department of the Navy that may allow for verification of the in-service stressor relating to the death of Lt. Brennan. The Board additionally notes that although the Veteran’s service personnel file is of record, his unit records are not associated with the claims folder. Therefore, the Board finds that these records should be obtained on remand in order to verify the claimed in-service stressors. Further, the Board notes that VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Moreover, if a claimed stressor is verified, then the Veteran should be provided a VA examination to determine the etiology of any acquired psychiatric disorder. The Board finally notes that the claim of entitlement to TDIU is inextricably intertwined with the claims of entitlement to service connection remanded herein. In other words, development of these claims may impact his TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. The matter is REMANDED for the following action: 1. Request the Veteran to provide information pertaining to his claimed in-service stressor that caused his acquired psychiatric disorder, to include the first name of Lt. Brennan, the type of aircraft he flew, and/or the bureau number of the airplane. 2. Obtain the Veteran’s service unit records during his periods of service in Palms, California in 1977 and Santa Ana, California in 1978. If the requested records are unavailable, notify the Veteran of such. He must then be given an opportunity to respond. 3. Thereafter, prepare a summary of the Veteran’s alleged in-service stressful events which consist of: 1) in March 1978, while stationed in Santa Ana, California and assigned a test flight on a helicopter that came out of maintenance for repair, the helicopter caught fire; 2) in June 1977 when stationed in Palms, California, the Veteran was flying at night when one of his engines shut down from sand getting into the engine and he had to make a forced landing at night into a desert with no radar; 3) in July 1978 while stationed at Santa Ana, a Lt. Brennan who was the Veteran’s best friend crashed his plane into the San Bernardino mountains. Send this summary and a copy of the Veteran’s DD Form 214 to the JSRRC or another appropriate agency. The JSRRC should be requested to provide any additional information that might corroborate the alleged stressful incidents. All attempts to obtain this information must be documented in the Veteran’s claims file. 4. Then, arrange for the Veteran to undergo a VA examination by an appropriate examiner to determine the etiology of any acquired psychiatric disorder. The entire claims file, must be made available to the examiner. The examiner should answer the following questions: a. Does the Veteran have an acquired psychiatric disorder to include PTSD? Please identify any such diagnoses. b. If there is PTSD, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s diagnosis of PTSD is related to his active duty? If PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. The examiner should provide an opinion as to whether the Veteran’s diagnosis of PTSD is supportable solely by the stressor(s) that has (have) been verified or established in the record. c. If the Veteran is diagnosed with any other acquired psychiatric disorder, to include depressive disorder, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s acquired psychiatric disorder is related to or had its onset in active duty? The underlying reasons for all opinions expressed must be provided. 5. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel