Citation Nr: 18153598
Decision Date: 11/29/18	Archive Date: 11/28/18

DOCKET NO. 15-25 146
DATE:	November 29, 2018
ORDER
Entitlement to service connection for bilateral hearing loss is denied.
Entitlement to an effective date earlier than December 5, 2012, for the grant of service connection for PTSD is denied.
Entitlement to an effective date earlier than December 5, 2012, for the grant of service connection for tinnitus is denied.
Entitlement to an initial rating in excess of 10 percent disabling for tinnitus is denied.
REMANDED
Whether new and material evidence has been received to reopen the claim for service connection for lumbar spine disability is remanded.
Whether new and material evidence has been received to reopen the claim for service connection for cervical spine disability is remanded.
Entitlement to service connection for a blood disorder, to include as due to environmental exposure and/or as part of a chronic multi-symptom disability under 38 C.F.R. § 3.317, claimed as Gulf War Syndrome, is remanded.
Entitlement to service connection for bilateral shoulder disability, to include as due to environmental exposure and/or as part of a chronic multi-symptom disability under 38 C.F.R. § 3.317, is remanded.
Entitlement to an initial rating in excess of 30 percent disabling for posttraumatic stress disorder (PTSD) is remanded.
FINDINGS OF FACT
1. The claim for service connection for a blood disorder was denied in an unappealed June 2006 rating decision. 
2. Evidence submitted since the June 2006 rating decision includes the service treatment records that pertain to the claim for a blood disorder.
3. The Veteran does not have a hearing loss disability in either ear pursuant to 38 C.F.R. § 3.385.
4. The Veteran filed original claims for entitlement to service connection for PTSD and tinnitus on December 5, 2012.
5.  The Veteran’s tinnitus is evaluated at the maximum schedular rating available for that disorder.
CONCLUSIONS OF LAW
1. The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C. §§ 1110, 1131, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2018).
2. The criteria for an effective date earlier than December 5, 2012, for the award of service connection for PTSD have not been met.  38 U.S.C. §§ 5101(a), 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.104, 3.151, 3.156, 3.160, 3.400 (2018).
3. The criteria for an effective date earlier than December 5, 2012, for the award of service connection for tinnitus have not been met.  38 U.S.C. §§ 5101(a), 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.104, 3.151, 3.156, 3.160, 3.400 (2018).
4.  The criteria for an initial evaluation in excess of 10 percent for tinnitus have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.87, Diagnostic Code (DC) 6260 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1988 to August 1992.  The Veteran participated in Operation Desert Shield from December 1990 to January 1991 and in Operation Desert Storm from January 1991 to February 1991.
This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs Regional Office (RO).
The Veteran withdrew his request for a hearing in May 2016 and February 2017 statements.  
The Board observes that additional evidence has been added to the claims file following the last adjudication by the RO in the May 2015 statement of the case (SOC), including a September 2015 VA examination conducted prior to certification of the case to the Board, and an October 2018 disability benefits questionnaire (DBQ).  The Board further observes that the Veteran has not waived AOJ consideration of new evidence.  However, as the newly added evidence concerns only the new and material evidence claims for the cervical spine and lumbar spine, and increased rating claim for PTSD, these records are not pertinent to the issues of earlier effective dates, service connection for hearing loss, and an increased rating for tinnitus decided below.  
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303.  In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service.  That presumption is rebuttable by probative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309(a). 
Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (2006).  The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  
The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not afforded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value.
The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
1. Hearing Loss
The Veteran asserts entitlement to service connection for bilateral hearing loss.  Specifically, the Veteran asserts that he has a bilateral hearing loss disability due to participation in combat activity and firing weapons.
Since filing his service connection claim in April 2013, the Veteran underwent a VA examination in April 2013.  The examiner noted the following audiometric testing results:
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	10	10	10	15	15
LEFT	5	5	15	15	10

Speech discrimination scores were 100 percent bilaterally.  The Veteran was diagnosed with normal hearing for both right and left ears.
In April 2015, the Veteran submitted a private audiological examination showing the following audiometric testing results:



			HERTZ		
	500	1000	2000	3000	4000
RIGHT	10	10	10	10	15
LEFT	10	10	20	10	10

Speech discrimination scores were noted as 94 percent for the right ear and 96 percent for the left ear.  The Veteran was diagnosed with normal hearing for both right and left ears. 
With respect to hearing loss, VA has specifically defined what is meant by a “disability” for the purposes of service connection: “[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 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.  The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).
Service connection requires evidence that establishes that the veteran currently has the claimed disability.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In the absence of evidence showing that the Veteran’s hearing loss rises to the level of being a disability as defined under 38 C.F.R. § 3.385, the Veteran’s claim for service connection for bilateral hearing loss disability must be denied. 
Although the Veteran is certainly competent to report his observations as to his own senses (i.e., loss of hearing acuity), he is not competent to provide the opinion that his level of hearing difficulty rises to such severity to as be considered a hearing loss disability.  To reiterate, in order for hearing loss to be considered a disability for VA purposes, hearing impairment must, by regulation, satisfy a minimum threshold level of impairment.  That degree of impairment is determined through application of specific audiometric tests prescribed by the regulations. Under the circumstances, the Veteran’s assertions regarding hearing difficulty are not sufficient to establish a hearing loss disability, and are significantly less probative than the audiometric data obtained from repeated audiometric tests.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case).
In sum, the evidence shows that the Veteran does not have disabling hearing loss in either ear pursuant to 38 C.F.R. § 3.385.  For that reason, he is not entitled to service connection for bilateral hearing loss and the claim is denied.
Effective Date
2.  Tinnitus
3.  PTSD
The Veteran filed service connection claims for tinnitus and PTSD on December 5, 2012.  A June 2013 rating decision granted service connection for tinnitus and PTSD effective December 5, 2012.  In his August 2013 NOD, the Veteran asserted entitlement to earlier effective dates.  Specifically, the Veteran asserts that the effective date should be commiserate with the date of onset of his tinnitus and PTSD.
If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose.  38 C.F.R. § 3.400(b)(2).  Otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999).  That is, the effective date of an award “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”  38 U.S.C. § 5110(a). 
The evidence of record reflects that the Veteran originally filed service connection claims for tinnitus and PTSD on December 5, 2012.  As noted above, the effective date cannot precede the date the Veteran filed his service connection claim.   Accordingly, as the Veteran filed his service connection claims on December 5, 2012 and the effective date set for both claims is the day he filed his service connection claims, the Board finds that the legally correct effective date is December 5, 2012.  There is no legal basis for an earlier effective date.
In reaching this decision the Board has considered the doctrine of reasonable doubt.  However, the preponderance of the evidence is against the Veteran’s claims and the claims are denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).
Increased Rating
4.  Entitlement to an initial rating in excess of 10 percent disabling for tinnitus.
The Veteran filed a service connection claim for tinnitus in December 2012.  That claim was granted in a June 2013 rating decision and assigned a 10 percent disability rating.  The Veteran appeals the initial rating. 
The Veteran’s tinnitus is rated as 10 percent disabling under DC 6260.  Under that diagnostic code, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  The maximum schedular rating available for tinnitus is 10 percent.  38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006); VAOPGCPREC 2-2003.  As the maximum schedular rating under DC 6260 has been reached, a higher schedular rating is not available and his claim for a higher schedular rating must be denied.
REASONS FOR REMAND
1. Blood Disorder
The Veteran’s claim for service connection for a blood disorder was originally denied in a June 2006 rating decision.  The AOJ denied the claim on the basis that the record did not show the Veteran had a chronic blood disorder related to service.  In this regard, the AOJ noted that the Veteran’s service treatment records (STRs) were unavailable and that, if obtained, they would be considered.  The Veteran did not file a timely notice of disagreement (NOD) and that decision became final.  38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103.
The Veteran filed to reopen his claim in December 2012.  Since the June 2006 rating decision, evidence added to the claims file includes the Veteran’s STRs.  Those records include an October 1988 dental health questionnaire showing the Veteran denied having a glucose-6-phosphate dehydrogenase (G-6PD) deficiency.  However, a November 1989 dental health questionnaire shows the Veteran reported having a G-6PD deficiency.  A G-6PD deficiency is the most common inborn error (i.e. genetic) of metabolism, an X-linked enzyme deficiency causing varying degrees of hemolytic anemia, favism, drug-induced hemolytic anemias, or chronic nonspherocytic hemolytic anemia.  See Dorland’s Illustrated Medical Dictionary 790 (32nd ed. 1994).  This disorder mainly affects red blood cells.  G-6PD deficiency is further noted in subsequent dental health questionnaires.
As these STRs are pertinent to the issue, the claim will be reconsidered pursuant to 38 C.F.R. § 3.156(c)(i).  
The Veteran further asserts that he was told he had a blood disorder that is etiologically related to environmental exposures during his deployment during the Persian Gulf War.
VA’s duty to assist a claimant includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim.  38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4).  Accordingly, the Board finds that a VA examination is necessary to determine the nature and etiology of any diagnosed blood disorder, to include under 38 C.F.R. § 3.317.
2. Lumbar Spine
3. Cervical Spine
In a November 2018 statement, the Veteran noted that he had begun to receive chiropractic treatment.  These records should be requested before a decision can be reached on the claims for his cervical spine and lumbar spine.
4. Bilateral Shoulder
The Veteran asserts entitlement to service connection for a bilateral shoulder disability.  Specifically, in May 2013, the Veteran asserted that he had shoulder pain and that his arms would go numb when raised above his head.  The Veteran has not asserted any traumatic injury related to his claimed bilateral shoulder condition.  
The Veteran underwent a VA examination for fibromyalgia in April 2013.  The Veteran reported that following his discharge from service he had continual episodes of shoulder muscle spasms and tightness.  The examiner noted no diagnosis for fibromyalgia but did note symptoms of muscle spasms and tightness that were episodic with exacerbations.  Tenderness was also noted in the bilateral supraspinatus muscle.  No etiological opinion was provided.
In further consideration that the Board is remanding the Veteran’s service connection claim for blood disorder, to determine whether his symptoms are part of an undiagnosed multi-symptom illness, the Board finds that a remand is necessary to determine the nature and etiology of any diagnosed bilateral shoulder disability, to include whether the bilateral shoulder symptoms are part of a chronic multi-symptom disability under 38 C.F.R. § 3.317.

5. PTSD
As noted above, additional evidence relevant to the Veteran’s increased rating claim for PTSD has been added to the claims file following the last adjudication by the RO in the May 2015 SOC, including a September 2015 VA examination conducted prior to certification of the case to the Board, and an October 2018 PTSD DBQ.  The Board further observes that the Veteran has not waived AOJ consideration of the evidence associated with the record after the May 2015 SOC.
Given that the Veteran has not waived his right to have new evidence reviewed in the first instance, a remand is necessary.  38 C.F.R. § 19.37(a).
The matters are REMANDED for the following action:
1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file, to include those from Horine Chiropractic.
2. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed blood disorder.  
The examiner should provide the following opinions:
(a) Note and detail all reported symptoms related to his claim for a blood disorder. 
(b) State whether the Veteran’s symptoms are attributed to a known clinical diagnosis. 
(c) If any symptoms of his claimed blood disorder have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. 
(d) Whether it at least as likely as not (50 percent or greater probability) that the Veteran has diagnosed blood disorder that is etiologically related to his period of service, to include environmental exposures.
The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination, including this Remand.  All indicated studies should be completed.  Reasons should be provided for any opinion rendered.  If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified.
3. After the development in #1 has been completed, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed bilateral shoulder disability.  
The examiner should provide the following opinions:
(a) Note and detail all reported symptoms related to his claim for a bilateral shoulder disability. 
(b) State whether the Veteran’s symptoms are attributed to a known clinical diagnosis. 
(c) If any symptoms of his claimed bilateral shoulder disability have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. 
(d) Whether it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed bilateral shoulder disability that is etiologically related to his period of service, to include environmental exposures.
The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination, including this Remand.  All indicated studies should be completed.  Reasons should be provided for any opinion rendered.  If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified.
4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the AOJ must re-adjudicate the issues on appeal, to include the new and material evidence claims for cervical and lumbar spine disabilities and increased rating claim for PTSD.  If any benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

 
S. HENEKS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Lamb, Associate Counsel