Citation Nr: 18148553 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 18-15 491 DATE: November 8, 2018 ORDER Service connection for a headache disorder is granted. Service connection for an acquired psychiatric disorder is granted. Service connection for an eye disorder is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for a sleep disorder is denied. Service connection for hypertension is denied. Service connection for hepatitis is denied. Service connection for diabetes mellitus is denied. Service connection for a neck disorder is denied. REMANDED Entitlement to service connection for back disorder is remanded. Entitlement to service connection for a bilateral leg disorder is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his headache disorder is at least as likely as not related to active duty service. 2. Resolving reasonable doubt in the Veteran’s favor, his psychiatric disorder is at least as likely as not related to active duty service. 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 right ear hearing loss for VA disability compensation purposes. 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 a sleep disorder for VA disability compensation purposes. 5. 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 a neck disorder for VA disability compensation purposes. 6. The Veteran’s left ear hearing loss was not caused by, related to, and/or aggravated by active duty service 7. The Veteran’s tinnitus was not caused by, related to, and/or aggravated by active duty service. 8. The Veteran’s hypertension was not caused by, related to, and/or aggravated by active duty service. 9. The Veteran’s hepatis was not caused by, related to, and/or aggravated by active duty service. 10. The Veteran’s diabetes mellitus was not caused by, related to, and/or aggravated by active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a headache disorder have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 3. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) 3.304, 3.307, 3.309, 3.385. 4. The criteria for entitlement to service connection for a neck disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 5. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 6. The criteria for entitlement to service connection for an eye disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 7. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 8. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 9. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 10. The criteria for entitlement to service connection for hepatitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to April 1979. The Board acknowledges that in September 2018, the Veteran’s attorney requested that the Board delay the resolution of the appeal for an additional 90 days. However, later that month, the attorney waived the need for any additional time. As such, there are no motions precluding the Board from adjudication. Service Connection 1. Entitlement to service connection for a headache disorder 2. Entitlement to service connection for an acquired psychiatric disorder The Veteran asserts that his headache and psychiatric disorders are related to active service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 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), 3.304, 3.307, 3.309. In this case, based on the evidence of record, the Board determines that service connection is warranted for the Veteran’s psychiatric and headache disorders. Specifically, the Veteran’s March 1979 report of medical history at separation reflects that he was experiencing psychiatric symptoms that included depression, nervousness, and trouble sleeping. Next, the evidence, including the credible statements from the Veteran, his wife, and friend, indicate that he has been experiencing continuous psychiatric symptoms since service. Further, the medical evidence including the November 2014 opinions from the Veteran’s treating psychiatrist, as well as the medical literature, is sufficient to demonstrate that his psychiatric disorder had its onset in, or was otherwise related to active duty. With respect to the Veteran’s headache disorder, the Board observes that the Veteran’s March 1979 report of medical history at separation reflects that he was experiencing “severe” headaches. Further, the Board finds the Veteran’s statements regarding headaches since service to be competent and credible. Moreover, the medical evidence, including the Veteran’s November 2011 private opinion, reflects that his headache disorder had its onset during service and was also “permanently aggravated” by his psychiatric disorder. As such, the Board finds that the evidence is at least in equipoise and service connection is warranted for the Veteran’s headache and psychiatric disorders. 3. Entitlement to service connection for an eye disorder 4. Entitlement to service connection for bilateral hearing loss 5. Entitlement to service connection for tinnitus 6. Entitlement to service connection for a sleep disorder 7. Entitlement to service connection for hypertension 8. Entitlement to service connection for hepatitis 9. Entitlement to service connection for diabetes mellitus 10. Entitlement to service connection for a neck disorder The Veteran generally asserts that his eye, bilateral hearing loss, tinnitus, sleep disorder, hypertension, neck, hepatitis, and diabetes, are related to his service. As a preliminary matter, the Board concludes that the Veteran does not have a current diagnosis of a sleep disorder, right ear hearing loss, and a neck disorder, 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). Specifically, the Board finds that after a thorough reading of the evidence of record, including the Veteran’s treatment records, the evidence does not reflect a current diagnosis related to these disorders at any time during the period on appeal. Further, regarding a sleep disorder, the Board observes that while the treatment records indicate that he has had “sleep disturbances,” there has not been any associated diagnosis. Moreover, to the extent the Veteran is experiencing sleep disturbances and related symptomology, the Veteran has been granted service-connected for a psychiatric disorder - which causes sleep disturbances and other overlapping symptoms. Thus, any additional compensation for these symptoms would be considered pyramiding. See 38 C.F.R. § 4.14. With respect to right ear hearing loss, the Veteran does not have a current diagnosis of hearing loss in the right ear for VA compensation purposes. Of note, 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 above frequencies 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. In this case, the audiometric testing during the Veteran’s June 2014 examination only revealed only a single auditory threshold over 25 decibels - 30 decibels at 4000 Hertz. However, as this is less than 40 decibels, in conjunction with the fact that his right ear speech recognition score was 96 percent, the Board finds that the Veteran does not have right ear hearing loss. The Board acknowledges the Veteran’s assertions and belief that he has these disorders, however, he is not competent to provide a diagnosis in this case. These issues are medically complex and require specialized medical education and knowledge of the interaction between multiple systems in the body, as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Further, to the extent the Veteran is competent to report neck pain, the Board acknowledges the holding in the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which indicates that pain can constitute a “disability” under 38 U.S.C. § 1110. However, the medical evidence is not sufficient to demonstrate a disability for VA purposes. The Board also notes that the Veteran has not reported neck pain to any of his medical providers. Therefore, to the extent the Veteran asserts that he currently has neck pain, these statements are less probative given that he has failed to report similar pain to his medical providers despite attending numerous examinations in which it would be expected that the Veteran would report such pain. As such, the preponderance of the evidence is against a finding that the Veteran has a sleep disorder, right ear hearing loss, and a neck disorder at any point during the time on appeal. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). With respect to left ear hearing loss, tinnitus, an eye disorder, hypertension, diabetes, and hepatitis, the Board concludes that while the Veteran has a current diagnosis of these disorders, the preponderance of the evidence weighs against finding that these disorders began during service or are otherwise etiologically related to an in-service injury, event, or disease. 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), 3.304, 3.307, 3.309, 3.385. As an initial matter, the Board is willing to accept the Veteran’s assertions that he was exposed to acoustic trauma during active service from heavy artillery and gun-fire given that soldiers with the Veteran’s specialty, an artillery crewman, are exposed to such noises. However, the service treatment records are silent for any complaints, symptoms, or a diagnosis relating to an eye disorder, diabetes, hypertension, tinnitus, and/or left ear hearing loss. Specifically, the Veteran’s March 1979 separation examination does not reflect a diagnosis of these disorders. Of note, his separation audiological evaluation reveals normal left ear hearing without any evidence of a negative shift in the Veteran’s left ear hearing thresholds. See Hensley v. Brown, 5 Vet. App. 155 (1993). Moreover, the Veteran’s report of medical history at separation documents his assertions that he did not have any eye trouble, hepatitis, and hearing loss, as well as the fact that he was in “good” health. The Veteran’s post-service medical evidence does not demonstrate any symptoms of hypertension or diabetes until 2000-2002. Further, the objective evidence notes symptoms and/or a diagnosis of hepatitis C in 2004 and an eye disorder in 2013. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes the statements from the Veteran regarding his history of symptoms since service. While the Veteran is competent to report that he experienced symptoms, including sensations of hearing loss, vision problems, and symptoms associated with hypertension and diabetes since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent the Veteran asserts that his disorders have persisted since service, the Board determines that the Veteran’s reported history of continued symptoms while competent, is nonetheless not probative in establishing a relationship between his complaints and active service. As an initial matter, the large gap in treatment for these disorders weighs against the Veteran’s claims. Further, the Veteran’s service treatment records from March 1979 contradict his assertions that his symptoms have persisted since service. Moreover, the Veteran’s June 2012 VA treatment records reflect that there were no eye abnormalities. Additionally, the Board notes that the Veteran filed a claim for VA benefits many years prior to filing the claims on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorders he now claims, weighs heavily against his credibility. Although the Veteran is not competent to diagnosis and provide etiological opinions related to the disorders on appeal, service connection may nonetheless be established if a relationship may be otherwise established by competent evidence, including medical evidence and opinions. In this case, the Board places significant value on the opinions of the June 2014 VA examiner who performed a detailed review of the Veteran’s service and medical treatment records and a thorough physical examination. Specifically, the examiner opined that the Veteran’s current left ear hearing loss is most likely related to post-service noise exposure, including working in a factory and driving trucks without hearing protection, as well as the natural aging process. Further, the examiner also noted that there was no evidence of hearing loss or threshold shifts during service. Additionally, the examiner also noted that the Veteran wore hearing protection during service, and therefore his current hearing loss would not have been caused by the Veteran’s in-service noise exposure. Next, while the Veteran had symptoms of diabetes in 2000, and a diagnosis of diabetes and hypertension in 2002, there is not sufficient evidence in the medical records to demonstrate a nexus between his active service and his diabetes and hypertension disorder. Similarly, the Veteran had hepatitis symptoms in 2004 and an eye disorder in 2013, respectively. However, there is no objective medical evidence linking these disorders to service. Moreover, the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence to establish a nexus between his complaints and active service. As part of this claim, the Board recognizes the statements from the Veteran and his wife, regarding the relationship between his disorders and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology such as tinnitus, hearing loss, eye trouble, and symptoms of diabetes and hypertension, they are not competent to provide a nexus opinion in this case. These issues are medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against his claims of service connection for left ear hearing loss, tinnitus, eye disorder, hypertension, sleep disorder, diabetes, neck disorder, and hepatitis, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied.   REASONS FOR REMAND 1. Entitlement to service connection for a back disorder is remanded. 2. Entitlement to service connection for a bilateral leg disorder is remanded. 3. Entitlement to service connection for a bilateral knee disorder The Veteran’s service treatment records, including his March 1979 report of medical history, reflect that he had back, leg, and joint pain at separation. Further, the post-service medical evidence, including the June 2012 and September 2013 VA treatment records, indicates that he may have current functional limitation caused by his pain that is related to service. See Saunders, 886 F.3d 1356. Therefore, a VA examination for these disorders is warranted based upon the evidence of record. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain all treatment records from the VA Medical Center in Tallahassee, Florida, since January 2018, as well as from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his back, bilateral knee, and bilateral leg disorders. The claims file must be reviewed, including the new records and such review should be noted in the opinion. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed knee, leg, or back disorders is etiologically related to the Veteran’s period of service. Additionally, as noted above, the examiner is instructed that pain alone can be a disorder for VA compensation purposes if the pain results in functional impairment, even if there is no identified underlying diagnosis. Therefore, if no diagnosis is rendered for the Veteran’s bilateral knee, bilateral leg, and back disorders, the examiner should provide etiological opinions as to whether or not his knee, back, and/or leg pain causes functional limitation, and if so, if the pain is etiologically related to the Veteran’s period of service. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel