Citation Nr: 18148113 Decision Date: 11/08/18 Archive Date: 11/06/18 DOCKET NO. 16-17 089 DATE: November 8, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for an allergy condition is denied. Entitlement to service connection for asthma is denied. REMANDED Entitlement to service connection for lumbar strain and partial discectomy is remanded. Entitlement to service connection for bilateral hip condition, to include as secondary to service-connected residuals of left ankle fracture with syndesmotic disruption, or as secondary to the lumbar strain and partial discectomy is remanded. Entitlement to service connection for a bilateral knee condition as secondary to the service-connected disability of residuals of left ankle fracture with left ankle fracture with syndesmotic disruption, or as secondary to lumbar strain and partial discectomy is remanded. Entitlement to service connection of sleep apnea/sleep disorder, to include as secondary to psychiatric disability is remanded. Entitlement to service connection for scars on back is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression and anxiety is remanded. Entitlement to an initial evaluation in excess of 10 percent for residuals of left distal fibula and ankle fractures with syndesmotic disruption is remanded. Entitlement to a compensable evaluation for a linear scar associated with the service-connected left ankle disability is remanded. FINDINGS OF FACT 1. At no time during the course of the present claim and appeal has the Veteran had hearing loss in either ear considered to be a disability for VA purposes. 2. The preponderance of the evidence is against finding that the Veteran has tinnitus due to a disease or injury in service, to include in-service noise exposure. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of an allergy condition. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of asthma. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for an allergy condition have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. §§ 1110,1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). In addition, the law provides that, where a veteran served ninety days or more of active military service and arthritis becomes manifest to a degree of 10 percent within one year from of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumption 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. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a bilateral hearing loss disability Hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater, when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 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 (2017). The veteran’s SMRs contain numerous audiometric reports. None of these reports resulted in a diagnosis of bilateral hearing loss. None of them show audiometric results sufficient to establish hearing loss for VA purposes. Id.   On the authorized audiological evaluation in November 2013 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 15 10 LEFT 10 10 15 10 10 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. Entitlement to service connection for bilateral hearing loss is not established. The veteran’s service treatment records and the November 2013 VA examination do not show diagnosis of bilateral hearing loss or hearing loss sufficient for VA purposes. The auditory thresholds and the speech recognition scores contained in the audiometrics do not show hearing loss as required for VA purposes. 38 C.F.R. § 3.385. Accordingly, the claim must be denied. Gilbert, supra. 2. Entitlement to service connection for tinnitus The Veteran asserts that he has tinnitus attributable to in-service noise exposure. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of tinnitus, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of tinnitus began during service or is otherwise related to an in-service injury, event, or disease, including noise exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA examination in November 2013 resulted in an assessment of tinnitus. The Veteran was not diagnosed with tinnitus until this examination, years after his separation from service. The service treatment records include an August 2006 Report of Medical History which shows that the Veteran denied any ear, nose or throat trouble. While the Veteran is competent to report having experienced symptoms of ringing in the ears, etc. since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of tinnitus. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing, i.e. audiograms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board also finds that the contemporaneous service treatment records that do not show complaints of tinnitus in service are more probative than the Veteran’s recent assertion that he had symptoms of tinnitus in service. As such, continuity of symptoms of tinnitus since service is not shown. Further, the November 2013 VA examiner opined that the Veteran’s tinnitus is not at least as likely as not related to an in-service injury, event, or disease, including acoustic trauma. The rationale was that the Veteran had normal hearing at the time of the examination and the service audiograms did not indicate that the Veteran had a military noise injury. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 3. Entitlement to service connection for an allergy condition The Veteran asserts that he has an allergy condition incurred in, or attributable to, service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of asthma and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). A review of the record discloses no assessment or indication of any allergy condition. Further, despite consistent treatment since October 2012 VA treatment records do not contain a diagnosis of any allergies. While the Veteran believes he has a current diagnosis of allergies, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, the knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 4. Entitlement to service connection for asthma The Veteran asserts that he has asthma incurred in, or attributable to, service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of asthma and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). A review of the record discloses a single notation dated in May 2014 of a provided history of asthma. Further, despite consistent treatment since October 2012, VA treatment records do not contain a diagnosis of asthma. Indeed, an April 2014 VA radiology note documents that the Veteran has not had asthma. While the Veteran believes he has a current diagnosis of asthma, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, the knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. RE ASONS FOR REMAND 1. Entitlement to service connection for lumbar strain and partial discectomy is remanded. VA’s duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). An examination is adequate if it takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran’s prior medical history and examinations. Stefl, 21 Vet. App. at 123. In April 2012 the Veteran was afforded a VA examination to address his claim of entitlement to service connection for the diagnosed low back disability. The VA examiner rendered a negative opinion, concluding that the low back disability was less likely than not “service-related” considering the time between in-service treatment for back pain and treatment for the currently assessed low back disability. The claim is remanded to afford the Veteran a new VA examination. The examiner failed to take into account the Veteran’s reported history of back pain in and since service. Notably, the service records disclose treatment for low back pain in May 1999, and the Veteran has reported a history of back pain since then with no inciting event. See VA PM&R consultation dated May 26, 2015. Accordingly, the claim is remanded. 38 C.F.R. § 4.2. 2. Entitlement to service connection for bilateral hip condition, to include as secondary to service-connected residuals of left ankle fracture with syndesmotic disruption, or as secondary to the lumbar strain and partial discectomy is remanded. The Veteran seeks entitlement to service connection for a bilateral hip disability, primarily as secondary to the service-connected left ankle disability. Here, he was afforded VA examinations in November 2013 and April 2016, each resulting in unfavorable etiological opinions. VA examination in November 2013 resulted in assessment of “pain both hips,” with the examiner remarking that it was the impression that the Veteran had left trochanteric bursitis with osteoarthritis. However, the examiner also felt x-rays were needed. VA examination in April 2016 does not appear to contain any assessment of any hip disorder, and the examiner noted that the hips demonstrated relatively good function and that x-rays of the hips were normal. Further examination is necessary to address this claim. It is unclear to the Board whether the Veteran has been assessed as having a disability of either hip. VA examination in November 2013 indicates suspicion of trochanteric bursitis and osteoarthritis, but assesses only pain. VA examination in November 2016 notes hip conditions, but notes normal x-rays and good function of the hips. Accordingly, the claim is remanded to afford the Veteran a new VA examination. 38 C.F.R. § 4.2. 3. Entitlement to service connection for a bilateral knee condition as secondary to the service-connected disability of residuals of left ankle fracture with left ankle fracture with syndesmotic disruption, or as secondary to lumbar strain and partial discectomy is remanded. The Veteran seeks entitlement to service connection for a bilateral knee disability, primarily as secondary to the service-connected left ankle disability. Here, he was afforded VA examinations in November 2013 and April 2016, each resulting in unfavorable etiological opinions. VA examination in November 2013 resulted in assessment of “chronic pain both knees,” with the examiner remarking that it was their impression that the Veteran had left chondromalacia patella. However, the examiner also felt x-rays were needed. VA examination in April 2016 does not appear to contain any assessment of any knee disability, and the examiner noted that the knees demonstrated relatively good function and that x-rays of the knees were normal. Further examination is necessary to address this claim. It is unclear to the Board whether the Veteran has been assessed as having a disability of either knee. VA examination in November 2013 indicates left chondromalacia patella, but apparently assesses only pain. VA examination in November 2016 notes knee conditions, but notes normal x-rays of the knees with good function. Accordingly, the claim is remanded to afford the Veteran a new VA examination. 38 C.F.R. § 4.2. 4. Entitlement to service connection of sleep apnea/sleep disorder, to include as secondary to psychiatric disability is remanded. The Veteran is claiming that he has sleep apnea or a sleep disorder. He is also claiming entitlement to service connection for an acquired psychiatric disability. A January 2013 mental health counseling note reflects sleep disturbance associated with psychiatric reports. Accordingly, this claim is inextricably intertwined with the claim of entitlement to service connection of an acquired psychiatric disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Because the issues are inextricably intertwined, adjudication of this issue must be deferred. 5. Entitlement to service connection for scars on back is remanded. The Veteran claims entitlement to service connection for scars of the back related to a discectomy. This issue is inextricably intertwined with the issue of entitlement to service connection for lumbar strain and partial discectomy. Id. 6. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression and anxiety is remanded. In December 2013, the Veteran was afforded a VA examination to address his claim of entitlement to an acquired psychiatric disability to include PTSD. Examination resulted in assessments of: 1) alcohol use disorder, severe, 2) unspecified personality disorder, antisocial, borderline, and narcissistic traits; and 3) PTSD. With respect to the assessed alcohol use and personality disorders, the examiner concluded that neither was related to service, and that both existed prior to the military, noting that the Veteran had a biological predisposition to alcohol abuse. Regarding the assessed PTSD, the examiner concluded that it was “at least as likely as not” that the PTSD was related to domestic violence in the Veteran’s childhood, living with an alcoholic father, and his parents’ divorce. In terms of service-aggravation, the examiner also found that it was less likely than not that the Veteran’s service worsened his PTSD beyond its expected progression, noting that his symptoms of PTSD were relatively mild. The examination report is insufficient to decide the claim. The examiner concluded that the Veteran’s assessed PTSD “at least as likely as not pre-existed service.” A Veteran is presumed sound at entrance, and the Veteran’s January 1996 entrance examination reflects a normal clinical psychiatric examination. The presumption of soundness may only be rebutted by clear and unmistakable (i.e., undebatable) evidence that the Veteran’s disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2011). Thus, the VA examiner addressed the wrong standard. Accordingly, the examination report is returned. 38 C.F.R. § 4.2. Here, and generally, personality disorders are not diseases or injuries within the meaning of the applicable legislation for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Although a personality disorder may be capable of progression, it is excluded from service connection as non-compensable. See O'Bryan v. McDonald, 771 F.3d 1376, 1380-81 (Fed. Cir. 2014). In any such case, the presumption of soundness would not apply. See Morris v. Shinseki, 678 F.3d 1346, 1354-56 (Fed. Cir. 2012). VA regulations also specifically prohibit service connection for a congenital or developmental defect, such as a personality disorder, unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995) (same). 7. Entitlement to an initial evaluation in excess of 10 percent for residuals of left distal fibula and ankle fractures with syndesmotic disruption is remanded. The Veteran was last afforded a VA examination in April 2012 to address the severity of this disability. Examination at that time reflected pain on movement, but no instability or disturbance with walking. A December 2015 VA Neurosurgery Consult note documents ankle instability and pain with weakness and pain with toe walking. It thus appears that the disability may have worsened since the most recent VA examination. Although the Board is not required to remand a claim because of the passage of time since an otherwise adequate examination, when it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the claim is remanded to afford him a new VA examination. 8. Entitlement to a compensable evaluation for a linear scar associated with the service-connected left ankle disability is remanded. Because the claim for an increased evaluation of a left ankle disability is herein remanded for a new VA examination to address the left ankle disability, the examination should also address the severity of the scarring associated with the left ankle disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of his low back disability. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. The examiner should obtain a complete, pertinent history from the Veteran. The examiner should render an opinion as to whether it is at least as likely as not (meaning likelihood of at least 50%) that the Veteran’s low back disability is related to or had its onset during service. The examiner should provide the Veteran with an opportunity to offer a history of his low back disability, including the circumstances of any lay-observed injury, and the examiner’s attention is directed to the Veteran’s reported history of back pain since 1999 with no intervening injury. The rationale for all opinions expressed should be provided. The claims file must be made available to, and reviewed by, the examiner, and the examination report must reflect that the claims file was reviewed. All indicated tests must be performed, and all findings reported in detail. 2. Schedule the Veteran for a VA examination to address the nature and etiology of his claimed disabilities of the bilateral hips and bilateral knees. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. The claims folder must be made available for review in conjunction with the opinion. For each diagnosed disability of either hip or either knee, if any, the examiner should address the following questions: a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran incurred a disability of either hip or either knee during service? b) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s service-connected left ankle disability caused a disability of either hip or either knee, to include by means of an altered gait? c) If it is determined that any assessed disability of either hip was not caused by the service-connected left ankle disability, the examiner should opine whether it is at least as likely as not that any disability of either hip or either knee has been aggravated (increased in severity) by the service-connected left ankle disability beyond natural progression, to include by means of an altered gait. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Schedule the Veteran for a VA psychiatric examination to determine the presence, severity and etiology of the Veteran's claimed acquired psychiatric disabilities. All indicated tests and studies should be conducted. The claims file should be available for review by the examiner. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his lay, as well as the pertinent medical evidence. The examiner should note that the claims file has been reviewed. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that any diagnosed psychiatric disability, to include PTSD, anxiety and depression is attributable to service. If, and only if, the examiner believes that a psychiatric disability pre-existed active service, the examiner is asked provide an opinion on the following: (1) Whether there is clear and unmistakable evidence that the Veteran's psychiatric disability pre-existed service and (2) Whether there is clear and unmistakable evidence that the Veteran's psychiatric disability was not aggravated by service. For any assessed personality disorder the examiner is asked to address whether it as at least as likely than not (a 50 percent or greater probability) that it pre-existed service. For any such personality disorder that the examiner finds pre-existed service, the examiner should provide an opinion as to whether it is at least as likely as not that any current acquired psychiatric disability was superimposed upon the antisocial personality disorder that pre-existed service. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. Schedule the Veteran for a VA examination(s) in order to ascertain the current severity of his service-connected left ankle disability. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The claims file, including a copy of this remand should be reviewed in conjunction with this examination. In assessing the severity of the left ankle disability, the examiner should test for pain on both active and passive motion, in weight-bearing and non-weight bearing, and if possible, each joint should be contrasted with the range of the opposite undamaged joint. Any further testing deemed necessary should also be conducted and the results recorded in detail. The examiner should elicit from the Veteran a complete history of any flare-ups of his left ankle disability. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the disability. The examiner should describe the additional loss, to include in degrees, if possible or sufficiently explain why any additional functional loss cannot be described or quantified. (Continued on the next page)   The examiner should, if possible, note facial expressions of pain, crepitation in soft tissues and joint structures, and test for pain throughout range of motion in the various ways described above. The examiner should also address the severity of any surgical scarring associated with the service-connected left ankle disability. K. J. Alibrando Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph R. Keselyak