Citation Nr: 18150444 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 09-33 227 DATE: November 15, 2018 ORDER Service connection for a sleep disorder is denied. Service connection for a positive purified protein derivative (PPD) skin test is denied. An initial compensable rating for fibrocystic breast disease is granted. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s claimed sleep disturbances are symptoms of her service-connected PTSD; a sleep disorder separate and distinct from the symptoms associated with PTSD has not been diagnosed. 2. A positive PPD conversion is a laboratory test result and not a disability for VA compensation purposes. 3. The Veteran’s fibrocystic breast disease was treated by local excisions that did not significantly alter the size or form of her breasts. She has, however, experienced recurrent pain throughout the period on appeal related to both the fibrocystic nodules and the incision and drainage procedures required for treatment. CONCLUSIONS OF LAW 1. The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.303, 3.310, 4.14. 2. The criteria for service connection for a positive PPD skin test are not met. 38 U.S.C. §§ 1101, 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for an initial compensable evaluation for service-connected fibrocystic breast disease are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.117, Diagnostic Codes 7626-7628; 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to September 1992, with additional reserve service and active duty for training from March 1982 to August 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The RO in Oakland, California certified the appeal to the Board. The Veteran’s claims file remains in the jurisdiction of the Oakland RO. In July 2016 and April 2017, the Board remanded the current issues for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Service Connection Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). 1. Sleep Impairment Resolution of the Veteran’s claim of entitlement to service connection for a sleep disorder turns on whether she has a sleep-related condition separate and apart from the sleep disturbance that has already been determined to be related to her service-connected PTSD. The Board finds that she does not and that, as a result, service connection for a sleep disorder is not warranted. In a November 2007 Application for Compensation and/or Pension, the Veteran characterized the disability for which she was seeking service connection as “sleep deprivation.” Later, in September 2008 notice of disagreement, the Veteran contended that the sleep deprivation was secondary to posttraumatic stress disorder or military sexual trauma. In her August 2009 substantive appeal, she stated that she had “sleep deprivation secondary to PTSD.” VA treatment records demonstrate continuous treatment for sleep disturbance associated with her PTSD. In February 2008, a VA clinician noted that the Veteran began taking mirtazapine in November 2007 for “sleep/PTSD (secondary to military sexual trauma).” The treatment record noted the patient’s active problems as including sleep disturbances. May 2010 VA progress notes stated that sleep disturbances are likely to be second to PTSD. In April 2017, the Board remanded the claim in effort to obtain clarification as to whether the Veteran had a sleep disorder separate and apart from symptoms associated with PTSD, and, if so, whether any such disorder was caused or aggravated by her active service, including service-connected PTSD. In conjunction with this requested development, the Veteran underwent an additional VA mental health examination in October 2017. At the time of the examination, the Veteran reported that she began having difficulty with falling and staying asleep in 1989 after she was sexually assaulted. Since the assault, she stated that on a nightly basis, she had trouble sleeping for intervals longer than two to four hours, and described feeling as though she was “half awake,” and able to hear everything that was going on around her. She indicated that she believed that if she had not been assaulted, she would not have difficulty sleeping. Based on the Veteran’s description of her experience with difficulty sleeping, the examiner determined that the Veteran’s chronic sleep impairment was considered to be a symptom of her PTSD; the criteria for a separate sleep disorder were not met. The examiner recommended that the Veteran seek follow up treatment, including individual therapy, to address her PTSD symptoms and learn coping strategies. There is no other relevant evidence supportive of a sleep disorder that is separate and distinct from signs or symptoms associated with the Veteran’s PTSD. In short, the Board finds that the preponderance of the evidence establishes that the Veteran’s sleep disturbances are manifestations of her service-connected PTSD, not a separately diagnosed sleep disorder. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (listing chronic sleep impairment as one of the symptoms to be considered when rating psychiatric disabilities). More importantly, the disability evaluations assigned for the Veteran’s PTSD throughout the course of this claim period have been based on symptoms that specifically included chronic sleep impairment. See May 2017 rating decision. Thus, even assuming that a distinct sleep disorder could be established based on the Veteran’s reported symptoms, assigning it a separate, compensable rating would violate the rule against pyramiding, because the same symptoms would be rated twice. See 38 C.F.R. § 4.14 (pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided). In summary, a separate compensable rating for the sleep disturbances that the preponderance of the evidence establishes are manifestations of her service-connected PTSD is prohibited by governing regulations. As a result, service connection for a sleep disorder must be denied. 2. Positive PPD Skin Test The Veteran asserts service connection is warranted for a positive PPD skin test in service. She has not submitted any statements in support of her claim, including any indication as to how she believes the positive PPD test might currently be affecting her. The Veteran’s service treatment records include a September 1992 Report of Medical History which indicated that a PPD test had been positive. She received preventative treatment between May 1990 and October 1990, and x-ray examination of the chest displayed negative results. A September 1992 Radiological Examination report documented an impression of “normal chest.” Post-service treatment records include a positive PPD skin test in May 2004. Additionally, November 2006 VA progress notes documented a “latent TB” treatment the previous year with isoniazid for nine months. Since the Veteran filed her August 2006 claim for service connection, the treatment records have not documented treatment for tuberculosis, verified a diagnosis of tuberculosis, or revealed a repeat positive PPD skin test. For example, December 2012 VA treatment records noted that testing had been negative for either tuberculosis or positive PPD. Significantly, a positive PPD test result is a laboratory finding used to test for exposure to mycobacterium tuberculosis when exploring a possible diagnosis of tuberculosis. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1498, 1962 (30th ed. 2003). It does not represent a clinical finding of tuberculosis. As detailed above, the claims file does not contain evidence of active tuberculosis, either in service or afterwards. As such, the preponderance of the evidence is against the claim, and it must therefore be denied. Increased Rating for Fibrocystic Breast Disease Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s fibrocystic breast disease has been rated under the provisions of 38 C.F.R. § 4.116, Diagnostic Code 7626 for surgery of the breast. Under Diagnostic Code 7626, a noncompensable rating is assigned following wide local excision without significant alteration of size or form for both or one breast. For VA purposes, a wide local excision (including partial mastectomy, lumpectomy, tylectomy, segmentectomy, and quadranectomy) means removal of a portion of the breast tissue. A 30 percent rating is warranted following simple mastectomy or wide local excision with significant alteration of size or form of one breast, and a 50 percent rating is warranted for simple mastectomy or wide local excision with significant alteration of size or form of both breasts. Turning to the medical evidence of record, May 2007 VA progress notes documented a history of breast abscesses/mastitis and fibrocystic disease. The Veteran reported that she had recurrent abscesses of the right breast approximately twenty years earlier and ultimately underwent surgery. The Veteran stated that in the last two months she began developing right breast pain and swelling. On March 27, 2007, the Veteran underwent incision and drainage. Upon examination, the Veteran presented with a recurring lesion with increased swelling, pain, and no drainage in the last month. The examiner documented an impression of abscess/mastitis. An April 2008 VA examiner documented the medical history of the disability. The examination report detailed that she has a twenty-one-year history of fibrocystic breast disease. A fistulectomy was performed in 1989. A May 2007 MRI revealed abnormal results, but follow-up examination produced negative results. The Veteran had had nine negative biopsies related to the disease. Following a breast examination, the examiner observed a well-healed, but slightly tender, scar on the right breast. The examination report documented an impression of “[p]atient with history of fibrocystic breast disease and right breast cysts multiple. Normal exam today.” March 2010 VA progress notes recorded the Veteran’s complaints of breast pain. A March 2010 biopsy of the left breast revealed an impression of benign breast parenchyma. A June 2016 VA treatment documented that a 2013 biopsy of the right breast produced negative results. The Veteran underwent VA breast examination in October 2017, as a result of which she was diagnosed with fibrocystic breast disease. The examiner affirmed that the Veteran has undergone breast surgery, listing the surgeries to include incisions and drainages, biopsies, and an implant on the right breast. Notably, however, the examiner indicated that there was no significant alteration of size or form of either breast, and that treatment had not resulted in the loss of 25 percent or more tissue from a single breast or both breasts in combination. The examiner verified a scar related to the disability, but found that the scar was not painful, unstable, or greater than 39 square centimeters. The examiner concluded that the fibrocystic breast disease was in remission. Following review of the record, the Board finds that a higher rating is not warranted under Diagnostic Code 7626. The Board acknowledges that treatment of the disability included recurrent incisions and drainage procedures as well as biopsies. However, the Veteran has not undergone either a simple mastectomy or wise local excision that has resulted in alteration of size or form. As such, the preponderance of the evidence is against a compensable rating under Diagnostic Code 7626. Although the criteria for a compensable rating are not met under Diagnostic Code 7626, Diagnostic Code 7628 allows breast symptoms to be contemplated under skin ratings, and in this specific instance, evaluation of fibrocystic breast disease that is benign can be found to best approximate the symptomology associated with tender and painful scars. Thus, the Board finds Diagnostic Code 7804 more closely approximates the symptomology associated with fibrocystic breast disease that is benign and the disorder is primarily manifested by complaints of pain. As such, the Board assigns a 10 percent disability rating under Diagnostic Code 7628-7804. 38 C.F.R. § 4.27. A higher rating is not warranted because the record does not document more than two scars that are unstable or painful. REASONS FOR REMAND The Veteran underwent VA audiological examination in October 2017. Testing demonstrated pure-tone air conduction thresholds of 25, 40, 30, 30 and 30 decibels for the right ear at the relevant frequencies, and 35, 40, 35, 40, and 40 decibels for the left ear at the relevant frequencies. Speech recognition testing resulted in scores of 96 percent, bilaterally. The examiner nevertheless determined that the Veteran did not meet VA criteria for a hearing loss disability, based on inconsistent test results. Specifically, the examiner determined that the speech recognition scores did not comport with the puretone thresholds. Given the examiner’s failure to adequately explain why the puretone threshold results were unreliable, the Board concludes that the 2017 VA examination is inadequate and the Veteran should be afforded a new VA examination on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Refer the VA claims file to an examiner with the appropriate expertise in order to address the etiology of the Veteran’s bilateral hearing loss. Schedule the Veteran for a VA audiological examination. The examiner is requested to review the claims file in its entirety including any recently obtained treatment records. In rendering the opinions detailed below, please discuss the significance of the in-service noise exposure the Veteran has described. Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the opinions. The audiologist should review the claims file and respond to the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s current bilateral hearing loss disability is related to her period of active duty for training from March 1982 to August 1982 or active duty from July 1987 to September 1992, to include her reported in-service excessive noise exposure? Please explain why or why not, specifically discussing why her current hearing loss is/is not a delayed response to her in-service noise exposure. Please also discuss the impact of the Veteran’s noise exposure on the hair cells in the cochlea, and state whether it is at least as likely as not that her hearing loss occurred sooner, or progressed to a greater degree of severity than it otherwise would have, as a result of her exposure to excessive levels of noise in service. (b.) If the audiologist attributes the Veteran’s current hearing loss exclusively to post-service acoustic trauma, then he or she should explain the basis for the conclusion that the in-service noise exposure did not result in permanent hearing loss. A discussion of the underlying reasons for any opinions expressed must be included in the audiologist’s report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel