Citation Nr: 18143754 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-27 428 DATE: October 22, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for a neck condition is denied. Service connection for a right hip condition, to include as secondary to a service-connected back disability, is denied. Service connection for a depressive disorder is dismissed. REMANDED Service connection for a right lower extremity disorder, to include of the right ankle and/or foot, is remanded. The issue of entitlement of a total disability evaluation based on individual unemployability is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss did not manifest in service, was not continuous since service, was not shown to a compensable degree within one year of separation from service, and is not etiologically related to his active duty service. 2. The Veteran does not have a neck condition that is related to or a result of active duty service. 3. The Veteran does not have a right hip condition that is related to or a result of active duty service, to include as secondary to a service-connected back disability. 4. A November 2015 rating decision granted the Veteran’s claim for an acquired psychiatric disorder, to include PTSD based, in part, on symptoms of depressed mood and anxiety. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for a neck condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). 3. The criteria for service connection for a right hip condition, to include as secondary to a service-connected back disability, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 4. The Board lacks jurisdiction over the claim of service connection for a depressive disorder because a claim for an acquired psychiatric disorder has been granted and rendered moot. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1994 to September 1995 and March 2005 to August 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran through counsel filed a notice of disagreement in June 2017, challenging the denial of a total disability evaluation based on individual unemployability. Although Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. 3.310(a) (2017). Regarding the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Hearing loss is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a “continuity of symptoms” after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, hearing loss will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Lay evidence must be considered, and competent lay evidence can be sufficient in and of itself to establish service connection. However, the Board retains the discretion to determine credibility and weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Laypersons are considered competent to provide a medical diagnosis only if (1) the disorder is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) her or her description of symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicolson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Bilateral hearing loss Service connection for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). In December 1993, the Veteran underwent audiological testing in conjunction with his service entrance examination. The Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 5 LEFT 5 5 20 0 0 In July 1995, the Veteran underwent audiological testing in conjunction with his active duty separation. The Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 0 5 5 10 LEFT 5 5 20 0 0 In August 2004, the Veteran underwent audiological testing. The Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 5 15 LEFT 5 5 5 0 5 In April 2006, the Veteran underwent audiological testing. The Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 10 5 LEFT 0 5 10 5 0 Later in April 2006, the Veteran again underwent audiological testing. The Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 15 5 LEFT 5 10 15 10 5 In October 2015, the Veteran underwent audiological testing in conjunction with his service connection claim for bilateral hearing loss. The Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 15 15 LEFT 15 15 20 5 10 Speech audiometry revealed speech recognition ability of 96 percent in the left ear and 96 percent in the right ear using the Maryland CNC speech discrimination test. The average pure tone threshold was 16 decibels for the right ear, and 13 decibels for the left ear. The examiner noted that the Veteran had normal hearing bilaterally. He noted abnormal contralateral acoustic reflexes bilaterally, although they were not tested. Service connection requires that the Veteran have a current disorder. Based on the audiometric findings, the Veteran does not meet the definition of hearing loss for VA purposes as defined by the provisions of 38 C.F.R. § 3.385 at any time during the pendency of the appeal. Accordingly, service connection for bilateral hearing loss must be denied. 2. Neck condition The Veteran contends that has a neck condition, to include pain, that began during active duty service. At a December 1993 medical examination, the Veteran did not report spine or other musculoskeletal symptoms. Service treatment records show that the Veteran was evaluated for neck pain in April 1994, and diagnosed with a neck sprain. In June 1995, the Veteran was also evaluated for neck pain. Service treatment records are silent for any other complaints, treatment, or notations of a neck condition, to include neck pain. A July 1995 separation examination noted that the Veteran’s spine was normal and while the Veteran reported fifteen other medical conditions, he did not report a neck condition. His April 2006 separation examination does not include complaints of a neck condition, to include neck pain. VA treatment records show one complaint of neck pain in June 2017, but no other treatment or diagnosis of a neck condition. In October 2015, the Veteran underwent a VA examination, when the VA examiner concluded that the Veteran’s current neck symptom was less likely than not related to the neck pain the Veteran experienced during active duty service. The Veteran had full range of motion and no pain was exhibited on examination. The examiner opined that the Veteran’s neck strain during active duty service resolved without residuals. Further, he stated that strains resulting in chronicity or residuals are usually the result of a more significant injury and would have been evidenced by further associated complaints. He added that given the lack of neck related complaints or neck problems for over a decade following the 1994 and 1995 complaints, it was less likely than not that the Veteran’s current neck condition is a residual of an in-service injury, event, or illness. The separation examination is highly probative because it was generated with the specific view of recording the events it described. In this respect, it is akin to an official record, which generally enjoys a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision). Regarding the Veteran’s statements, in which he attributes his claimed neck condition to his active duty service, the Veteran is competent to report neck pain. Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). However, the Veteran is not competent (meaning medically trained) to provide a medical diagnosis, nor to make a complex medical determination involving the etiology of his purported neck condition. Jandreau. Therefore, although the Veteran contends that he has a current neck condition, to include pain, and there are notations of neck strain during active duty service, the evidence does not show a positive nexus between a current neck condition and active duty service. After a review of the evidence, the Board finds the weight of the evidence is against the veteran’s claim, and therefore the claim of service connection is not warranted and must be denied. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Right hip condition, to include as secondary to a service-connected back disability In October 2015, the Veteran underwent a VA examination for a back disability. While the VA examiner concluded that the Veteran had degenerative disc disease of the thoracolumbar spine which is service-connected, the physician determined that the Veteran did not experience any other pertinent physical findings, complications, conditions, signs, or symptoms related to his thoracolumbar back disability. The evidence is silent as to any treatment, diagnosis, or complaints of a right hip condition beyond the Veterans’ claim for entitlement to service connection. Notably, the Veteran is currently in receipt of a 10 percent disability rating for radiculopathy of the right lower leg based, in part, on pain. The Veteran is competent to report physical symptoms such as pain because such requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran has not shown that he is competent (meaning medically trained) to provide a medical diagnosis, nor to make a complex medical determination involving the etiology of a right hip condition. See Jandreau. Although the Veteran claims to be experiencing pain, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). The Court has specifically disallowed service connection where there is no present disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The evidence does not demonstrate that the Veteran has a current diagnosis of a right hip condition that was either incurred in-service or was caused or aggravated by a service-connected disability. In the absence of a current clinical diagnosis, service connection for a right hip condition must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Depressive disorder The Veteran has also claimed entitlement to service connection for a depressive disorder. The Board has broadened the claim of a depressive disorder to any acquired psychiatric disorder that may be reasonably encompassed by the Veteran’s description of the claim, the Veteran’s symptoms, and other information of the record, so as not to improperly limit the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 6, (2009). The Veteran is currently in receipt of a 70 percent disability rating for posttraumatic stress disorder (PTSD) based, in part, on depressed mood and anxiety. When there is no case or controversy, or when a once live case or controversy becomes moot, the Board lacks jurisdiction. See Bond v. Derwinski, 2 Vet. App. 376, 377 (1992); Mokal v. Derwinski, 1 Vet. App. 12, 15 (1990). In October 2015, the Veteran underwent a VA examination, at which time the VA examiner determined that is was not possible to differentiate what symptoms were attributed to his diagnoses of PTSD and other specified depressive disorder. Given that service connection for an acquired psychiatric disorder, to include PTSD, has already been granted, there is no “controversy” or “issue” currently before the Board as the claim has been resolved in the Veteran’s favor. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (a case or controversy must exist to obtain appellate review). The law provides that the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5) (2012). As the Veteran has received a full grant of the benefit sought (i.e., service connection for an acquired psychiatric disorder, to include PTSD) there remains no error of fact or law for the Board to address, and the appeal must be dismissed. REASONS FOR REMAND 1. Right lower extremity disorder, to include the right ankle and/or foot The Board has determined that additional development is necessary and the appeal is, therefore, REMANDED as directed below in the numbered directives paragraphs 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) The Veteran was denied TDIU in June 2017 and the Veteran submitted a timely notice of disagreement with that decision later that month. Because the filing of a notice of disagreement initiates appellate review, the claim pertaining to TDIU must be remanded for the preparation of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). 1. Reasons for the Remand: The Veteran contends that his right foot turns out and that this disorder is related to his active duty service. 2. Conduct development to: Obtain an opinion regarding the Veteran’s right lower extremity disorder, if any, to include the right ankle and/or foot. The examiner should opine as to whether the Veteran has a current disorder that was caused or aggravated by the Veteran’s active duty service. The findings should be reported in detail. THE VETERAN MAY BE REQUESTED TO PROVIDE THE DATES, LOCATIONS, AND CIRCUMSTANCES OF ANY RELEVANT MEDICAL RECORDS AND/OR TREATMENT TO ENABLE VA TO INVESTIGATE THE CLAIM. All relevant medical records must be made available to the examiner for review of pertinent documents. The opinion should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. 3. The examiner’s attention is drawn to the following: * The Veteran contends that he has a right lower extremity disorder, to include that his right foot “turns out.” * The Veteran served as a paratrooper during active duty service. * At his December 1993 medical examination, the evaluator denied that the Veteran’s feet were normal and instead noted “P.P.” The Veteran denied any bone, joint or other deformity. * In May 1994, the Veteran experienced foot and ankle trauma, indicated by complaints of left foot and ankle pain when walking. The Veteran was prescribed pain medication and placed on a profile that permitted him to jump, run, and march at his own pace and distance for three weeks. * June 1995 service treatment records demonstrate that the Veteran was evaluated for pain and swelling of his left lower extremity. * The Veteran underwent a service department physical examination in July 1995. The Veteran reported foot problems, to include pain in the arches of his feet. 4. Thorough explanations must be provided for the opinions rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should expressly indicate this and provide state what evidence would enable him or her to provide a non-speculative opinion. 5. After completing all indicated development, INCLUDING, IF APPLICABLE, ANY EVIDENCE CITED BY THE EXAMINER TO ENABLE A NON-SPECULATIVE OPINION, readjudicate the claim considering all the evidence. 6. Issue a Statement of the Case as to the denial of TDIU, dated in June 2017. After an appropriate period, readjudicate the claims. If the benefits sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal should be returned to the Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carolyn Colley, Associate Counsel