Citation Nr: 18141290 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 15-08 796A DATE: October 11, 2018 ORDER Entitlement to service connection for left ear hearing loss is denied. Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus is denied. Entitlement to nonservice-connected pension benefits is denied. REMANDED Entitlement to service connection for arthritis of the left knee is remanded. Entitlement to service connection for arthritis of the right knee is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for a disability manifested by excess menstrual bleeding is remanded. Entitlement to service connection for a disability manifested by tremors of the left hand is remanded. Entitlement to service connection for a disability manifested by tremors of the right hand is remanded. Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran does not have left ear hearing loss within the statutory definition of that disability. 2. The Veteran is in receipt of the maximum schedular rating for tinnitus; her symptoms are contemplated by the diagnostic criteria and have not resulted in interference with employment or frequent hospitalization. 3. The Veteran is presently employed full time; the evidence does not support a finding that she is permanently and totally disabled due to nonservice-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.385 (2017). 2. The criteria for a rating in excess of 10 percent for service-connected tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.87 Diagnostic Code 6260 (2017). 3. The criteria for a grant of nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 1502, 1521(j), 5107(b) (2012); 38 C.F.R. §§ 3.23, 3.102, 3.274 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army Reserves and the Mississippi State National Guard with confirmed periods of active duty from June 3, 1981, to October 22, 1981, and from January 24, 2003, to April 8, 2003. She has additional confirmed and unconfirmed periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2013 and December 204 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In June 2018, the Veteran testified before the undersigned Veterans Law Judge at a hearing held via live videoconference. A transcript of that hearing is of record. 1. Entitlement to service connection of left ear hearing loss. The Veteran filed a claim for service connection of bilateral hearing loss. Although the Board has remanded the issue of entitlement to service connection for right ear hearing loss, below, the Board finds that the claim for left ear hearing loss should be denied because he does not meet the statutory criteria for hearing loss in that ear. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). For the 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, 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. 38 C.F.R. § 3.385. The Veteran was afforded a VA examination in connection with her claim in October 2013. At that time, audiogram testing showed the following puretone thresholds in Hertz: HERTZ 500 1000 2000 3000 4000 RIGHT 105 105+ 105+ 105+ 105+ LEFT 35 25 30 15 10 Maryland CNC Testing showed a speech discrimination score of 100 percent in the left ear. While this examination clearly supported a diagnosis of hearing loss in the right ear for VA compensation purposes (indeed, the issue of entitlement to service connection for right ear hearing loss is remanded below for further development), the results do not support such a diagnosis in the left ear. None of the auditory thresholds are 40 Hertz or greater, and she does not have at least three thresholds at 26 Hertz or greater in the left ear. Further, her speech discrimination score in the left ear is not less than 94 percent. As such, the Board must determine that the Veteran does not meet the statutory criteria for a diagnosis of hearing loss in the left ear at this time and the claim must be denied. Essentially, the Veteran fails the first criteria for service connection, namely, a presently diagnosed disability. The Board notes that this holding does not preclude the Veteran from obtaining service connection for hearing loss in the right ear, indeed that issue remains on appeal and is remanded below. This decision also does not preclude the Veteran from obtaining service connection for hearing loss in the future, presuming that her left ear hearing loss worsens to the point of meeting the statutory criteria for that disability and she meets the remaining criteria for such a grant. However, under the present statutory guidelines, the Board cannot grant the claim for service connection of left ear hearing loss. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus. In December 2014, a rating decision granted the Veteran service connection of tinnitus at 10 percent. The Veteran has appealed the rating assigned for that disability, asserting she should be granted a higher rating. The Board finds that the claim should be denied. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the disability on appeal, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. The Veteran’s tinnitus is rated under Diagnostic Code 6260, which specifically compensates for tinnitus. Under the applicable diagnostic criteria, recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head, is assigned a 10 percent rating, regardless of severity of the symptoms. No higher schedular rating is available for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. In light of the above, the Board must find that the Veteran is already in receipt of the maximum schedular rating for her tinnitus, and cannot be assigned a higher rating under the diagnostic criteria. Although other diagnostic codes may provide for higher ratings for auditory disabilities, “when a condition is specifically listed in the Schedule, it may not be rated by analogy.” Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). In this instance, the Veteran’s diagnosis is clearly recurring tinnitus, which at most, may be afforded a 10 percent rating under the diagnostic criteria for that disability, a rating which she has already received. Finally, to the extent that she has asserted that she is entitled to a higher rating than the maximum allowable rating for that disability, the Board finds that the issue of whether referral for an extraschedular rating is raised in this matter, but finds that such referral is not warranted. Ratings shall be based as far as practicable upon the average impairments of earning capacity, with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). The Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. In this case, the Board finds that neither the first nor the second prong have been met. The Veteran has not testified as to any additional symptoms beyond ringing in her ears, which is specifically accommodated under the applicable diagnostic criteria. Further, although she has indicated that it makes hearing difficult at work, she has not testified that her disability has resulted in interference with employment as a whole (for example, resulting in significant missed work), nor has it resulted in frequent periods of hospitalization. As such, referral for extraschedular consideration is not appropriate in this matter. In sum, the Board finds that the Veteran is already in receipt of the maximum allowable schedular rating based on her diagnosis of recurrent tinnitus and cannot be assigned a rating in excess of 10 percent for his disability. Therefore, the Board must deny the increased rating claim based on schedular analysis. Neither is referral for an extraschedular rating appropriate in this matter. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 3. Entitlement to nonservice-connected pension benefits. The Veteran seeks entitlement to nonservice-connected pension benefits. After careful consideration, but Board finds that the claim should be denied. Basic entitlement to an improved monthly pension exists if a veteran (1) served in the active military, naval or air service for 90 days or more during a period of war (38 U.S.C. 1521(j)); (2) meets the net worth requirements under 38 C.F.R. §3.274; (3) does not have an annual income in excess of the applicable maximum annual pension rate; (4) and is age 65 or older or is permanently and totally disabled from nonservice-connected disability not due to the veteran’s own willful misconduct. 38 C.F.R. § 3.3(a)(3). For purposes of determining eligibility to VA pension benefits, a person shall be considered to be permanently and totally disabled if that are and of the following: (1) a patient in a nursing home for long-term case because of a disability; (2) disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; (3) unemployable as a result of a disability reasonably certain to continue throughout the life of the person; or (4) suffering from (a) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonable certain that such disability will continue throughout the life of the person, or (b) any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. 38 U.S.C. § 1502(a). In this matter, the Board has carefully reviewed the evidence of record but found no evidence that the Veteran has been confined to a nursing home for long-term care; there is no evidence that she has been deemed disabled by the Commissioner of Social Security. With regard to her various diagnosed disabilities, the Veteran has confirmed diagnosis of tinnitus, right ear hearing loss, and bilateral arthritis of the knees. She also asserts that she suffers from tremors of the hands, excessive menstrual bleeding and an acquired psychiatric disability. The Veteran was afforded a VA examination in connection with her claim in October 2013, at which time the examiner found the Veteran’s knees to result in limited flexion of 100 degrees with no objective evidence of painful motion and no stability issues. The examiner stated that her knees would not impact her ability to work. Her hearing loss is severe in the right ear, although does not rise to a statutory diagnosis of hearing loss in the left ear. The examiner also opined that her hearing loss would not prevent her from pursuing gainful employment. In light of the above examination reports, the Board must conclude that they do not support a finding of total and permanent disability. Although consideration of total disability generally involves analysis of the severity of those nonservice-connected disabilities which are diagnosed, in the present case, the Board need not go so far. Here, even presuming her various disabilities render her disabled beyond that which was noted in the 2013 examinations, in her hearing before the undersigned testified that she is presently employed and able to work a regular 40-hour work week. Total disability implies that a veteran’s various disabilities render him or her unable to maintain gainful employment. Therefore, to the extent that she has conceded that she is able to maintain gainful, full time employment to date, the Board must conclude that she can follow a substantially gainful occupation and therefore does not meet the criteria for a finding of permanently disability as of this time. Absent a finding of permanent disability, a claim for nonservice-connected pension must be denied. In short, because the evidence does not support a finding that the Veteran has been rendered permanently and totally disabled from non-service-connected disability, the claim for nonservice-connected pension must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection of right ear hearing loss is remanded. As noted above, an October 2013 VA examination diagnosed hearing loss in the Veteran’s right ear. Although an etiology opinion was rendered with respect to that disability, the Board finds it inadequate. Specifically, the Board notes that the opinion rendered primarily dealt with aggravation of the Veteran’s hearing loss by her final period of active service in 2003. The Veteran asserts that her hearing loss is the result of exposure to exploding ordinance during her first period of active service in 1981. The Board further notes that her personnel records indicate that between 1987 and 1988 she completed active duty training pertaining to grenade and other ordinance use. As such, an opinion should be rendered which addresses causation or aggravation by all periods of active service, not just her last. The Board further notes that her service treatment records appear to be incomplete. The earliest evidence of an in-service examination is from 1985, although she joined the reserves and completed a period of basic training as early as June 1981. Therefore, on remand, attempts should be made to obtain and associate with the claims file the Veteran’s complete service treatment records. 2. Entitlement to service connection of arthritis of the left knee is remanded. 3. Entitlement to service connection of arthritis of the right knee is remanded. 4. Entitlement to service connection of a disability manifested by excess menstrual bleeding is remanded. 5. Entitlement to service connection of a disability manifested by tremors of the left hand is remanded. 6. Entitlement to service connection of a disability manifested by tremors of the right hand is remanded. In her hearing, the Veteran indicated that she had recently begun treatment for her various claimed disabilities through VA. To the extent that any such treatment records may be relevant to the issues remaining on appeal, particularly to the claims regarding tremors and excessive menstrual bleeding as any associated diagnosis is relevant, the Board will remand these issues so that all VA and identified private treatment records may be obtained. The Board further notes that, as addressed above, the Veteran’s service treatment records appear to be somewhat incomplete as they do not include an entrance examination or any records from her first period of active duty in June 1981. As such. A remand is necessary to ensure that all service treatment records are available before a final adjudication may be made. 7. Entitlement to service connection of an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD) is remanded. The Veteran seeks service connection for an acquired psychiatric disorder, claimed as PTSD, which she asserts was caused by a military sexual trauma (MST) which occurred on ACDUTRA in Okinawa, Japan. A claim 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 the 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). When PTSD is claimed secondary to an in-service personal assault, the nature of the stressor implies that regular evidence, such as service treatment records, may not confirm such a stressor occurred. Rather, evidence from sources other than the Veteran’s service records can be used to corroborate the stressor. Such evidence includes, but is not limited to, evidence of behavioral changes; records from law enforcement, rape crisis centers, mental health counseling centers, hospitals or physicians; pregnancy or sexually transmitted disease tests; and statements from family members or friends. Evidence of behavioral changes may include requests for a transfer to another military duty assignment; episodes of depression; substance abuse; deterioration in work performance; panic attacks; anxiety without identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). To date, the Veteran’s claim has been denied because her claimed in-service MST could not be verified. Particularly, the RO noted that the Veteran’s only confirmed periods of active service occurred in 1981 ans 2003. Because the Veteran asserted that the MST occurred in 1988, that was outside a period of confirmed active duty. A review of the Veteran’s military personnel records shows that the Veteran served periods of ACDUTRA in Japan in both May 1987 and May 1988 while a member of the Army Reserves. She has provided personal statements attesting to a MST which occurred while stationed in Japan. She has also provided a lay statement from a fellow service member attesting to her changed behavior while in Japan and thereafter. She has also testified that she sought a transfer away from the Reserves shortly after her return, which is confirmed by the personnel records showing a transfer from the Reserves to the Mississippi National Guard in October 1989, just over a year after the MST allegedly took place. In light of the above, the Board finds that the Veteran has provided sufficient credible supporting evidence that the claimed in-service stressor occurred during a period of ACDUTRA which is documented in her personnel records, to refer the claim for an examination. As such, the Board finds that a VA examination should be conducted which addresses any possible diagnosis and etiology of an acquired psychiatric disability. In remanding this issue for an examination, the Board further notes that the Veteran, in her hearing, testified that she had recently begun treatment for an acquired psychiatric disability at a VA facility. As any such records associated with that treatment may be relevant, they should be obtained prior to any examination taking place. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any new evidence in support of her claim. All records/responses received must be associated with the electronic claims file. 2. The RO should make a request for any outstanding service treatment records, particularly for any records pertaining to the Veteran’s first period of active service in 1981. All attempts to locate such documents should be documented in the record. If any additional documents cannot be located or obtained, the Veteran and her representative should be notified and given the opportunity to supplement the record. 3. The RO should obtain and associate with the record any outstanding VA treatment records pertaining to the issues remaining on appeal. All records/responses received must be associated with the electronic claims file. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right ear hearing loss is at least as likely as not related to her noise exposure during active service (particularly to any use of grenades, rifles or other ordinance, as documented in her personnel records). Any opinion should address all periods of active service, not merely the most recent period. 5. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD) or other acquired psychiatric disorder. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor, in this case, her reported MST in Japan in 1988. Particularly, the examiner must opine whether the evidence of record, including the Veteran’s lay statements, statements made by fellow service members, and the Veteran’s service records, corroborate the claim that a personal assault occurred in service. If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. 6. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include her reported MST. 7. After completing all preliminary development indicated, review the record and, if any benefit sought on appeal remains denied, furnish the Veteran and her representative a supplemental statement of the case and give the opportunity to respond. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel