Citation Nr: 18143269 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 18-29 731 DATE: October 18, 2018 ORDER The claim for service connection for low back disability is reopened. The claim for service connection for left ear hearing loss is reopened and denied. Service connection for an acquired psychiatric disorder is denied. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. In an April 2004 rating decision, the RO denied service connection for hearing loss in the left ear and central-right L5-S1 disc herniation (claimed as low back condition); the Veteran was advised of the RO’s decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s April 2004 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 3. New evidence received since the time of the RO’s April 2004 decision, when considered with the evidence previously of record, relates to unestablished facts necessary to substantiate the Veteran’s claims for service connection for left ear hearing loss and low back disability and raises a reasonable possibility of substantiating the claims. 4. The Veteran does not have a current left ear hearing loss disability as defined in VA regulation. 5. The Veteran’s current acquired psychiatric disorder, to include major depression and anxiety disorder, has not been shown to be related to service; nor has any such disorder been shown to have been caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The RO’s April 2004 decision denying service connection for left ear hearing loss and low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.204, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claims for service connection for left ear hearing loss and low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a left ear hearing loss disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.385. 4. The criteria for service connection for an acquired psychiatric disorder, to include as secondary to service-connected disability, have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1976 to May 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2014 and March 2015 rating decisions issued by the agency of original jurisdiction (AOJ). Procedural History As an initial matter, the Board finds that the Veteran’s application to reopen his claim for service connection for a left ear hearing loss disability dates back to an application filed in July 2013. The AOJ denied that claim in a February 2014 rating decision, and the Veteran submitted new and material evidence in the form of lay reports of worsening hearing in May 2014 and December 2014, within one year of the decision. The AOJ readjudicated the claim in August 2014 and March 2015 rating decisions, and the Veteran filed a timely notice of disagreement (NOD) in March 2015, initiating the instant appeal. The Board also finds that the Veteran’s claim for service connection for an acquired psychiatric disorder originates from his appeal of an August 2014 rating decision denying service connection for an anxiety disorder. Although the AOJ noted in its March 2015 rating decision that new and material evidence had not been received to reopen the Veteran’s claim for an acquired psychiatric disorder, the Veteran’s March 2015 NOD, liberally construed, constituted a timely appeal of the August 2014 rating decision. See 38 C.F.R. § 20.201. The Board notes that a claim for service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5, 9 (2009). Finally, the Board notes that the Veteran’s application to reopen service connection for a low back disability was denied in the March 2015 rating decision. The Veteran appealed that decision in his March 2015 NOD, along with the claims discussed above. New and Material Evidence The Veteran first filed claims for service connection for low back disability and left ear hearing loss in September 2003. Those claims were denied in an April 2004 rating decision. The Veteran was notified of the decision but did not appeal, and no new evidence was received within one year of the decision. Accordingly, the April 2004 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran now seeks to reopen those claims. During the pendency of the appeal, the record reflects that he described worsening hearing loss in his left ear (for example, in his May 2014 and December 2014 claims). These lay reports are presumed credible for purposes of reopening. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Additionally, a March 2015 VA audiological evaluation revealed high-frequency sensorineural hearing loss in the left ear. With respect to his low back disability, the Veteran has submitted additional medical evidence of treatment for low back problems in 1986, less than three years after his separation from service. The Board finds that the evidence submitted since the April 2004 rating decision, when considered with previous evidence of record, relates to previously unestablished facts that are necessary to substantiate the claims on appeal—i.e., evidence of a possible current left ear hearing loss disability and nexus between the Veteran’s current low back problems and service. As such, the evidence is new and material and warrants reopening. See 38 C.F.R. § 3.156. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally 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 link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. Left ear hearing loss disability The Veteran contends that he has a left ear hearing loss disability that was incurred in service. For the following reasons, the Board finds that service connection is not warranted. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered a “disability” when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 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. Hearing loss does not constitute a “disability” if it does not meet these threshold requirements. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). The Veteran’s service treatment records include multiple audiograms reflecting normal hearing in his left ear, for VA purposes. Also of record are audiograms from January 1984, February 1984, and June 2010 which likewise show normal hearing in the left ear. The Veteran filed the instant claim for service connection in July 2013. On VA examination in February 2014, audiological findings reflected puretone averages, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- -- -- -- -- LEFT 20 20 20 25 25 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. On VA examination in March 2015, audiological findings reflected puretone averages, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- -- -- -- -- LEFT 20 20 20 20 25 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. The examiner noted that the Veteran had sensorineural hearing loss in his left ear, but only at frequencies above 4000 Hertz. No more recent audiological evaluations are of record. The Veteran has not alleged that his hearing has worsened since the March 2015 VA evaluation. The Board notes that the mere passage of time does not require VA to provide a new medical examination. See Palczewski, 21 Vet. App. at 182. After careful review, the Board finds that service connection for a left ear hearing loss disability cannot be granted, because the evidence does not demonstrate that the requirement of a current disability has been met. In short, there is simply no evidence that the thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz have ever been 40 decibels or greater, or that the thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz have been 26 decibels or greater. There is likewise no evidence of speech recognition scores less than 94 percent. The Board has considered the Veteran’s general reports (implied in his claims for service connection) of subjective hearing loss in his left ear. Nevertheless, while he is certainly competent to report such symptoms, to the extent that he claims to have had a hearing loss “disability” during the pendency of his appeal, the medical evidence of record—most notably the various audiograms discussed above—clearly reflects otherwise, and is more probative than his lay statements. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In sum, the record does not establish that the Veteran has a current left ear hearing loss disability. Without a current disability, service connection may not be granted. Palczewski, 21 Vet. App. at 179-80. Acquired psychiatric disorder The Veteran contends that his current acquired psychiatric disorder is secondary to his service-connected tinnitus and right ear hearing loss. For the following reasons, the Board finds that service connection is not warranted. The Veteran’s service treatment records do not contain any reference to complaints or treatment for psychiatric symptomatology. The first record of treatment for psychiatric problems dates from 2003. That year, the Veteran was seen with complaints of suicidal ideation, anxiety, insomnia, and irritability, which he appeared to attribute to “occupational and family conflict.” He was diagnosed with major depression and anxiety disorder. There was no indication from these records that the cause of his psychiatric symptomatology was his tinnitus and/or hearing loss. On VA examination in August 2014, the Veteran reported that he had difficulty dealing with his hearing problems; he noted symptoms of depressed mood, anxiety, and disturbances of motivation and mood. Diagnoses of unspecified anxiety disorder, major depressive disorder, and alcohol use disorder were noted. The examiner reviewed the Veteran’s psychiatric treatment notes, noting that the Veteran had previously reported that his symptoms were due to financial difficulties, stressful working environment, and poor compliance with his medications. The examiner further noted that during his February 2014 audiological examination no functional impairment as a result of tinnitus and/or hearing loss was noted. The examiner concluded that it was less likely than not (i.e., less than 50 percent likely) that the Veteran’s current acquired psychiatric disorder was due to or the result of his service-connected tinnitus and/or right ear hearing loss. By way of rationale, the examiner explained that there was no evidence of psychiatric complaints, findings, or treatment during the Veteran’s service or within one year thereafter. The examiner further noted that the Veteran first sought psychiatric care in 2007. (As discussed above, this statement is inaccurate, as the Veteran has submitted evidence of treatment for psychiatric symptoms in 2003.) Notwithstanding, the examiner concluded that the Veteran’s psychiatric symptoms, by his own report, were more likely the result of stressful work experiences, and not due to tinnitus and/or hearing loss. After carefully reviewing the record, the Board finds that the preponderance of the evidence is against the Veteran’s claim. As noted above, the record is devoid of psychiatric complaints or treatment until 2003, approximately two decades after the Veteran’s discharge from service. The Veteran does not contend, and the evidence does not reflect, that his diagnosed acquired psychiatric disorder originated in or is otherwise related to his service. Furthermore, there is no probative evidence to support the contention that the Veteran’s tinnitus and/or hearing loss caused or aggravated his acquired psychiatric disorder; rather, the only positive evidence in this regard are his lay statements to that effect. The Board acknowledges that the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by an examiner. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran is not competent to testify regarding complex medical questions requiring specialized knowledge. In this case, a VA medical professional has reviewed the record and opined that the evidence does not support a link between the Veteran’s acquired psychiatric disorder and his tinnitus and/or right ear hearing loss. The Board finds the examiner’s conclusion to be more probative than the Veteran’s lay statements, particularly given the fact that the Veteran has previously attributed his psychiatric symptoms to nonservice-related causes. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider inconsistent statements and consistency with other evidence of record). The VA examiner’s opinion addressed the Veteran’s documented medical history and his lay contentions regarding the onset of his psychiatric symptomatology. It is well-established that, when evaluating medical evidence, the Board considers evidence to be more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the Board finds that the neutral, expert opinion of the VA examiner is more probative than the general lay statements provided by the Veteran in this case—particularly considering the inconsistent nature of those statements. In sum, the Board finds that the most probative evidence demonstrates that the Veteran’s acquired psychiatric disorder, to include anxiety and depression, was not caused or aggravated by his service-connected tinnitus and/or right ear hearing loss, and is not otherwise related to service. Consequently, the claim for service connection must be denied. REASONS FOR REMAND Lower back disability The Veteran contends that his current low back problems originated in service. His post-service medical records reflect that he has been diagnosed with muscle spasm, low back pain, and herniated disc. His service treatment records reflect that he injured his lower back in August 1977 while lifting heavy objects. The Veteran has submitted medical records documenting treatment for low back pathology in 1986, as well as a 1991 CT report documenting L5-S1 disc herniation. The Board notes that the Veteran has not been afforded an examination to evaluate his low back disability. In light of the evidence discussed above, the Board finds that the requirements for such an examination have been satisfied. 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). This matter is REMANDED for the following action: 1. Arrange to have the Veteran scheduled for a VA examination of the thoracolumbar spine. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should identify any low back disabilities that are present. Then, with respect to each such disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability had its onset in, or is otherwise attributable to, the Veteran’s period of active service. In so doing, the examiner should discuss the medical significance, if any, of the documented August 1977 lifting injury noted in the Veteran’s service treatment records and evidence of treatment for low back symptoms in January 1986 and April 1991, as documented. A complete medical rationale for all opinions expressed must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the claim remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Minot, Associate Counsel