Citation Nr: 18150027 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-41 153 DATE: November 14, 2018 ORDER Entitlement to service connection for left knee osteoarthritis and osteoarthrosis is granted. Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral neurological disability of the upper extremities is remanded. Entitlement to service connection for bilateral neurological disability of the lower extremities is remanded. Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s left knee osteoarthritis and osteoarthrosis began during active service. 2. Since the July 17, 2012 effective date of service connection, the Veteran has had at most level I hearing in both ears. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left knee osteoarthritis and osteoarthrosis are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309(a). 2. The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to June 1971, which includes service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) from September 2013, July 2014, and August 2016 rating decisions. As for characterization of the issues on appeal, although the Veteran has been retired during the entire period since the effective date of service connection for his service-connected PTSD and hearing loss, he contends that he was unable to continue working due to his service-connected PTSD, and he submitted a formal claim for a TDIU (VA Form 21-8940) in September 2016. Entitlement to a TDIU may be an element of an appeal for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Given the evidence of current disabilities, the Veteran’s claim for the highest ratings possible for his service-connected PTSD and hearing loss, and the evidence of unemployability due to service-connected disability, the issue of entitlement to a TDIU is properly before the Board under Roberson and Rice and the Board has expanded the appeal to include this issue. Lastly, the Board points out that the Veteran had also perfected an appeal with regard to the issue of entitlement to service connection for erectile dysfunction. The agency of original jurisdiction (AOJ) granted service connection for erectile dysfunction by way of a December 2017 rating decision, and thereby resolved the appeal as to this issue. I. Service Connection Entitlement to service connection for left knee osteoarthritis and osteoarthrosis Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Certain chronic diseases (including arthritis) will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service (one year in the case of arthritis); or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he injured his left knee while serving in Vietnam and that he has continued to experience left knee symptomatology in the years since service. The Board finds, for the following reasons, that the Veteran has current diagnoses of left knee osteoarthritis and osteoarthrosis that began during active service. A September 2013 VA nursing outpatient note and an October 2015 VA primary care letter show the Veteran has current diagnoses of left knee osteoarthritis and osteoarthrosis. There is also evidence of a left knee injury in service and evidence of continuous knee symptoms in the years since service. In this regard, the Veteran has reported that he experienced a penetrating injury to the left knee when he fell while serving in Vietnam. His service personnel records confirm that he served in Vietnam. In addition, he has reported on various occasions (including in a November 2012 statement (VA Form 21-4138) and on an October 2013 “Statement in Support of Claim for Service Connection for Post Traumatic Stress Disorder” form (VA Form 21-0781)) that while serving in Vietnam, his unit experienced incoming enemy fire and engaged with the enemy. A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. See VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran’s own statements and an “almost unlimited” variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). In light of the evidence noted above, the Board finds that there is sufficient evidence that the Veteran participated in combat/was exposed to incoming enemy fire while serving in Vietnam. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154 (b). The combat rules not only reduce the evidentiary burden for establishing in-service disease, but may also assist a veteran in showing incurrence of the disability in service. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). The Veteran is competent to report a left knee injury in service. His reports of such injury in combat situations in service are satisfactory evidence and the reports are consistent with the circumstances of his service in Vietnam. There is no clear and convincing evidence to the contrary. Hence, a left knee injury in service is established. Moreover, the Veteran’s post-service medical records and lay statements indicate that his left knee symptoms have continued in the years since service. The Veteran is competent to report continuous left knee symptoms in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372,1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is nothing to explicitly contradict his reports and they are consistent with the evidence of record. Thus, the Board finds that the reports of continuous left knee symptoms in the years since service are credible. In sum, the evidence reflects that the Veteran experienced a left knee injury in service and that there have been continuous knee symptoms in the years since service. He has also been diagnosed as having current left knee osteoarthritis and osteoarthrosis. There is no medical opinion contrary to a conclusion that the current left knee osteoarthritis and osteoarthrosis were incurred in service. Hence, the Board finds that the evidence is at least evenly balanced as to whether the evidence indicates that the current left knee disability had its onset in service. In light of this evidence and as the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the currently diagnosed left knee osteoarthritis and osteoarthrosis is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). II. Higher Initial Rating Entitlement to an initial compensable rating for bilateral hearing loss Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be “staged.” Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Hearing loss is rated on the basis of examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. Id. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing loss exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. In the latter situation, the higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds, for the following reasons, that an initial compensable rating for bilateral hearing loss is not warranted at any time since the effective date of service connection. During an August 2013 VA audiological examination, the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 25 55 70 41 LEFT 15 35 60 65 44 Speech audiometry revealed speech recognition ability of 96 percent in both ears. Using Table VI, the August 2013 VA examination revealed level I hearing in both ears. Combining level I hearing for both ears according to Table VII yields a rating of 0 percent. During an August 2016 VA audiological examination, the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 30 60 80 46 LEFT 20 40 65 70 49 Speech audiometry revealed speech recognition ability of 96 percent in both ears. Using Table VI, the August 2016 VA examination revealed level I hearing in both ears. Combining level I hearing for both ears according to Table VII yields a rating of 0 percent. The Veteran has expressed his belief that the severity of his hearing loss warrants a higher rating. He is competent to report the symptoms of his hearing disability and the Board has no legitimate basis to challenge the credibility of his lay contentions. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. However, ratings for hearing loss are determined by a mechanical application of the VA rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The lay statements of record do not show that the Veteran has met the specific pure tone thresholds and/or speech discrimination percentages required for a compensable rating for bilateral hearing loss at any time since the effective date of service connection. The Board further finds that, in conjunction with the appeal for a higher initial rating for bilateral hearing loss, neither the Veteran nor his representative have raised any other related issues, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching its decision in this appeal, the Board has resolved reasonable doubt in the Veteran’s favor, where applicable. The record neither shows that the evidence is so evenly balanced as to warrant a higher rating for bilateral hearing loss, nor does the evidence show that the Veteran’s hearing disability more closely approximates the criteria for a compensable rating at any time since the effective date of service connection. The benefit of the doubt doctrine is therefore not for application and the appeal for a higher initial rating for bilateral hearing must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran’s VA treatment records reflect that he has been diagnosed as having hypertension. He contends that his hypertension is related to his presumed exposure to herbicide agents (including Agent Orange) in Vietnam. In this regard, the National Academy of Sciences (NAS) has indicated that there is limited or suggestive evidence of an association between hypertension and Agent Orange exposure. See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81,332-01 (Dec. 27, 2010)). Moreover, the Court has held in multiple memorandum decisions that VA’s acknowledgment in the Federal Register that there is “limited or suggestive evidence,” see 79 Fed. Reg. 20308, 20310 (Apr. 11, 2014), of an association between Agent Orange exposure and hypertension was relevant to the question of whether the failure to discuss the Federal Register NAS findings rendered the Board’s reasons or bases inadequate, warranting vacatur and remand. See Clark v. Shinseki, No. 12-2667, 2013 WL 6729512 (Vet. App. Dec. 20, 2013); Rodela v. Shinseki, No. 12-2894, 2013 WL 6184952 (Vet. App. Nov. 27, 2013); King v. Shinseki, No. 12–2893, 2013 WL 5428781 (Vet. App. Sept. 30, 2013); Allsopp v. Shinseki, No. 12–1847 (Vet. App. Aug. 27, 2013). In the alternative, the Board points out there is evidence showing a possible association between the Veteran’s service-connected PTSD and his hypertension, as the VA’s own regulatory documents have indicated a possible association between psychiatric disorders and cardiovascular disease. See Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004) (association between PTSD and cardiovascular disease in prisoners of war). See also VA National Center for PTSD, Kay Jankowski, PTSD and Physical Health (“A number of studies have found an association between PTSD and poor cardiovascular health”). The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypertension because no VA examiner has opined whether the Veteran’s hypertension is related to service or service-connected disability. Hence, the Veteran should be afforded an appropriate VA examination upon remand. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Southeast Louisiana Veterans Health Care System and are dated to June 2017. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the remaining issues on appeal. A remand is required to allow VA to obtain them. 2. Entitlement to service connection for bilateral neurological disability of the upper and lower extremities are remanded. The Veteran’s VA treatment records indicate that he has been diagnosed as having neurological disabilities of the upper and lower extremities. He contends that his claimed neurological disabilities are related to his presumed exposure to herbicide agents in Vietnam. In this regard, early-onset peripheral neuropathy is among the list of diseases that are presumed to be caused by exposure to herbicide agents. See 38 C.F.R. § 3.309(e). The Board cannot make a fully-informed decision on the issues of entitlement to service connection for bilateral neurological disability of the upper and lower extremities because no VA examiner has opined as to the nature and etiology of the Veteran’s claimed neurological disabilities. Hence, he should be afforded an appropriate VA examination upon remand. See Id. Also, all outstanding VA treatment records should be secured upon remand. 3. Entitlement to service connection for cervical spine disability is remanded. As the record currently stands, there is no evidence of current cervical spine disability. As additional treatment records are being sought upon remand which may document evidence of current cervical spine disability, the claim of service connection for cervical spine disability is also being remanded. 4. Entitlement to an initial rating higher than 30 percent for PTSD is remanded. The Veteran has reported relevant psychiatric treatment at the Vet Center in Baton Rouge, Louisiana. In June 2013, the AOJ contacted this facility and requested all available treatment records. In July 2013, the Vet Center responded that the Veteran had been evaluated at that facility on 6 occasions between October 2012 and February 2013. The Vet Center did not, however, provide copies of any available treatment records and no further efforts were undertaken to obtain these records. Hence, a remand is necessary to attempt to obtain all outstanding Vet Center records. Also, all outstanding VA treatment records should be secured upon remand. 5. Entitlement to a TDIU due to service-connected disabilities is remanded. Since implementation of the Board’s award of service connection for left knee disability and a decision on the other remanded service connection and higher initial rating issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. Hence, a remand of the claim for a TDIU is required. Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. After implementing the Board’s award of service connection for left knee osteoarthritis and osteoarthrosis, to include the assignment of an initial disability rating, ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for neurological disability, hypertension, cervical spine disability, and psychiatric disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for neurological disability, hypertension, cervical spine disability, and psychiatric disability from the Vet Center in Baton Rouge, Louisiana, and any other sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. Document all requests for information as well as all responses in the claims file. 3. Obtain the Veteran’s VA treatment records from the Southeast Louisiana Veterans Health Care System for the period since June 2017; and all such relevant records from any other sufficiently identified VA facility. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the etiology of his current hypertension. The examiner must opine whether any hypertension experienced by the Veteran since approximately October 2013 at least as likely as not (1) began during active service; (2) manifested within one year after discharge from service; (3) is related to an in-service disease or injury, including his presumed exposure to herbicide agents (including Agent Orange); (4) is caused by service-connected PTSD; or (5) is aggravated by service-connected PTSD. The examiner must provide reasons for each opinion given. In this regard, the examiner should consider the limited or suggestive evidence of an association between Agent Orange exposure and hypertension (79 Fed. Reg. 20308, 20310 (Apr. 11, 2014)) and the VA materials which suggest an association between PTSD and hypertension (Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004) (association between PTSD and cardiovascular disease in prisoners of war); VA National Center for PTSD, Kay Jankowski, PTSD and Physical Health). The fact that hypertension is not on the list of diseases presumed to be associated with exposure to Agent Orange should not be the basis for a negative opinion. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current neurological disability of the upper and lower extremities. The examiner must opine whether any neurological disability of the upper and lower extremities experienced by the Veteran since approximately October 2013 at least as likely as not (1) began during active service; (2) manifested within one year after discharge from service; or (3) is related to an in-service disease or injury, including his presumed exposure to herbicide agents (including Agent Orange). The examiner must provide reasons for each opinion given. In this regard, the fact that a specific neurological disability is not on the list of diseases presumed to be associated with exposure to Agent Orange should not be the basis for a negative opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel