Citation Nr: 18141963 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 16-17 315 DATE: October 12, 2018 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to an increased evaluation in excess of 50 percent for adjustment disorder with mixed anxiety, depressed mood, and sleepwalking is denied. FINDINGS OF FACT 1. The Veteran’s tinnitus did not manifest during service or within one year of separation and is not otherwise related to service. 2. The Veteran’s service-connected adjustment disorder with mixed anxiety, depressed mood, and sleepwalking is productive of occupational and social impairment with reduced reliability and productivity, but not productive of occupational and social impairment in most areas. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in active service, nor is it presumed to have been so incurred. 38 U.S.C. §§1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for an evaluation in excess of 50 percent for adjustment disorder with mixed anxiety, depressed mood, and sleepwalking have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9440, previously rated as 9435. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from August 2005 to August 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran originally requested a Board hearing in his VA Form but subsequently withdrew the request in an election form. Law and Analysis Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). 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 tinnitus is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including tinnitus, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for tinnitus. The Veteran’s service treatment records do not document any complaints, treatment, or diagnosis of tinnitus. The Veteran’s in-service medical examinations indicated his ears were in normal condition. Likewise, in a report of medical history the Veteran denied having ear trouble. Therefore, while the Veteran’s claimed tinnitus condition is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations of tinnitus was shown in the service records. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and tinnitus may not be presumed to have been incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. There is also no evidence showing the Veteran had tinnitus that manifested to a compensable degree within one year of his military separation or that he had continuity of symptomatology since service. The Veteran’s post service records are silent for a diagnosis of tinnitus and problems with ringing of the ears. In fact, several medical records note the Veteran denied having tinnitus. See February 2010 VAMC record. Moreover, in an October 2012 General VA examination report, the Veteran denied having tinnitus. In January 2016, the Veteran was afforded a VA examination in connection with his claim. The examiner noted the Veteran did not complain of tinnitus in service and that the he wore hearing protection a lot when he was around noise. Further, the examiner found that pneumatic tools have not been shown to cause auditory damage. Therefore, it is less likely than not the Veteran’s claimed tinnitus was related to his service, including his noise exposure from pneumatic tools during service. There is no medical evidence showing otherwise. The Board acknowledges and has considered the Veteran’s statement that his tinnitus began in service. See April 2015 notice of disagreement. Laypersons are competent to report observable symptoms in service and thereafter. While lay persons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds the Veteran is competent to state that his tinnitus began in service and he continues to have it. However, those allegations are inconsistent with a contemporaneous record. As previously discussed, the treatment records are negative for any complaints, treatment, or diagnosis in service, and he denied having a medical history of ear trouble. The Board notes that the Veteran likely would have reported ringing in his ears during service, at the time of discharge, or during his post service medical appointments. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). As such, there is actually affirmative evidence showing that he did not have tinnitus in service or thereafter. The Board finds that this affirmative evidence, including objective testing, outweighs the more recent assertions of an onset in service. For this reason, the Board finds the reported onset and history are not reliable or credible. Moreover, after considering the evidence of record, the Board finds the January 2016 VA examiner’s opinion is more probative, as it was provided by a medical professional with knowledge, training, and expertise and supported by a complete rationale based on such knowledge. Additionally, the Veteran’s claims file was reviewed and the Veteran’s history and statements were considered. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for tinnitus. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet App. 49, 53-56 (1990). Therefore, the Board concludes that service connection for tinnitus is not warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s adjustment disorder is currently assigned a 50 percent disability evaluation, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9440, previously rated under DC 9435. Under Diagnostic Code 9440, higher ratings include a 70 percent rating, warranted when the psychiatric disorder results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when the psychiatric disorder results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The use of the term “such as” in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected adjustment disorder. As to social impairment, the evidence shows the Veteran has a large circle of friends but does not see them very much. Additionally, he stated that he had an extremely hard time with romantic relationships and they do not last very long. At the time of his November 2015 VA examination, the Veteran stated that his romantic relationship was not going well. The examiner noted the Veteran had trouble interacting and relating to people. The October 2016 VA examiner noted the Veteran isolated himself and was worried about losing people close to him because he had difficulty interacting with people. As to occupational impairment, it appears the Veteran has not worked since 2012 when he lost his job due to injuries. In his November 2015 and October 2016 VA examinations, the Veteran stated he tried to get other jobs but was unable to because of his injuries. In his November 2015, the Veteran elaborated by stating that future employers saw him as a liability. The November 2015 VA examiner opined that the Veteran’s adjustment disorder caused occupational and social impairment with reduced reliability and productivity. The October 2016 VA examiner indicated the Veteran’s disorder caused occupational and social impairment with occasional decrease in work efficiency. Neither opinions are commensurate with an evaluation in excess of 50 percent. Further, the Veteran’s symptomatology has not been similar to that of the 70 percent. The Board acknowledges the November 2015 examiner indicated the Veteran experienced an inability to establish and maintain effective relationships. Further, the Board notes that during the October 2016 VA examination, the Veteran stated he had to write down plans and tasks to remember. However, there is no indication that he has obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; or neglect of personal appearance and hygiene. Indeed, the October 2016 VA examiner did not indicate an inability to establish and maintain effective relationships, while it was noted the Veteran has difficulty doing so. Further, the November 2015 examiner observed the Veteran did not have speech problems but poor memory for doctor names and medications. The October 2016 VA examiner observed the Veteran was dressed and groomed appropriately, exhibited normal motor behavior and eye contact, and had logical thought process and typical speech pace. Moreover, to the extent any of the symptoms of a 70 percent rating may be shown or argued, the Board again emphasizes that the Veteran’s adjustment disorder has not been shown to be productive of occupational and social impairment in most areas or total occupational and social impairment to warrant a higher rating. There is no also indication that he has had any of the other symptoms of the 70 or 100 percent criteria, such as obsessional rituals; illogical, obscure, or irrelevant speech; or disorientation to time or place. After considering the evidence of record, the Board finds that the Veteran’s symptoms more closely approximate the criteria for a 50 percent disability rating for the entire period on appeal. Overall, the Veteran has not demonstrated a level of impairment consistent with the 70 percent criteria, nor have the Veteran’s symptoms caused occupational and social functioning in most of the areas or total occupational and social functioning referenced by the 70 and 100 percent evaluation criteria. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for the next higher rating of 70 percent have not been met or approximated. See 38 C.F.R. § 4.130, Diagnostic Code 9440. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel