Citation Nr: 18154443 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-50 056 DATE: November 29, 2018 ORDER Service connection for low back disability is denied. Service connection for bilateral hearing loss is denied. A 10 percent rating prior to May 26, 2016 for right foot disability is granted. A rating in excess of 10 percent prior to and from May 26, 2016 for right foot disability is denied. REMAND Entitlement to a rating in excess of 30 percent for post traumatic stress disorder is remanded. FINDINGS OF FACT 1. A low back disability did not have its onset in service; low back pain shown many years after service it not related to in-service disease or injury. 2. The Veteran’s right ear hearing loss is not related to in-service noise exposure; and left ear hearing loss disability for VA purposes is not shown at any time during the appeal. 3. A right foot disability is characterized by moderate nonunion of the fracture at the right fifth metatarsal throughout the appeal period; moderately severe disability is not more nearly approximated. CONCLUSIONS OF LAW 1. The criteria for service connection for a back condition are not met. 38 U.S.C. §§ 1110; 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110; 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for a 10 percent rating prior to May 26, 2016 for a right foot disability are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284. 4. The criteria for rating in excess of 10 percent from May 26, 2016 for a right foot disability are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5284 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2006 to August 2006 and from December 2007 to November 2008. This case comes before the Board of Veteran’s Appeals (Board) on appeal of March 2012 and May 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). 1. Entitlement to service connection for back condition. The Veteran contends that he developed back pain during active service in Iraq between March and November 2008. He reported that he did a lot of heavy lifting, climbed onto and off large trucks, loaded heavy guns and artillery into trucks, wore body armor and ammo, carried a 70-pound backpack during training. See NOD (May 2012). The Board concludes that the preponderance of the evidence is against service connection for back disability. Neither a back injury nor reports of back pain are shown during the Veteran’s active duty service. Also, a back condition is not otherwise related to service, to include carrying and moving equipment, ammunition, backpacks, and body armor during active service. 38 C.F.R. §§ 3.307, 3.303(b); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). STRs reflect no complaints or findings for abnormal back pathology. The Veteran’s post-deployment health reassessment in 2008 reflects no complaints of back pain or other back symptoms. The first documented complaint of back pain is on the Veteran’s May 2009 VA disability claim. See VA Form 21-526 (May 2009). VA treatment records from November 2, 2012, reflect complaints of low back pain which varies in places and is relieved by stretching but are otherwise silent regarding this issue. See CAPRI, pp. 33 (May 2015). A May 2016 VA examination report shows a diagnosis for lumbosacral strain and low back pain. However, the examiner concluded that the disability was not related to the Veteran’s active service, including heavy lifting, climbing up and down into large trucks, and wearing body armor and ammo packs, noting that he was not treated until years after active service in 2012. In a September 2016 addendum, the examiner clarified that he believed too much time had elapsed between when the Veteran had back symptoms during active service and the post service onset of symptoms in 2012 to permit the linking of any current symptoms to active service. In this regard, he noted that had the reported low back pain been significant in service an x-ray would have been done, suggesting that this is routine medical practice. The Board accepts that the Veteran is competent to report his symptoms, the onset of those symptoms, and treatment. In this regard, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, here, the Veteran is not competent to link any current diagnoses or findings to his active service. Also, to the extent that he suggests ongoing symptoms since service, the Board finds this is not credible in view of the post-deployment reassessment, discussed above, and the fact that the Veteran did not claim to have back problems related to service on his November 2008 report of medical assessment— when the Veteran stated the condition occurred. See STR (August 2009). It is noted that the Veteran is not competent to link his symptoms shown many years after his active service to his active service, including the carrying of heavy bags and equipment. This is because the etiology is not susceptible to lay observation and he lacks the requisite medical training to formulate a competent medical opinion on the etiology of his current symptoms and/or abnormal pathology. Therefore, the Veteran’s statements have little probative value. The Veteran has not presented a favorable medical opinion to weigh in this matter. The Board assigns greater probative value to the STRs, which lack evidence of a back condition, coupled with the November 2008 and May 2009 health assessment and the many years intervening service and the first documented post service complaints and findings. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). See also Maxson v. West, 12 Vet. App. 453 (1999), aff’d sub nom., Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has hearing loss due to noise exposure in service. The question for the Board is whether there is hearing loss disability for VA purpose and, if so, is it etiologically related to in-service noise exposure (injury). The Board concludes that, while the Veteran has right ear hearing loss, the preponderance of the evidence is against finding that it is caused by or related to in-service noise exposure. The Board further concludes that the Veteran does not have a hearing loss disability as defined by VA under 38 C.F.R. § 3.385. See 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records (STRs) reflect no complaints or findings for hearing problems. Hearing was within normal limits on hearing conservation reports pre-deployment in June 2006 and on service separation in November 2008. See STR (August 2009). Other hearing conservations reports were similarly negative. The Veteran denied hearing loss and ear trouble on his May 2009 post-deployment health reassessment. A November 2010 VA audiological examination reflects right ear hearing loss for VA purposes, but no hearing loss disability of the left ear for VA purposes. See 38 C.F.R. § 3.385. The Veteran reported noise exposure in service with hearing protection and post-service factory and environmental work for which he denied a need for hearing protection. The examiner noted that audiological tests in the STRs from 2005 to 2008 indicate normal hearing and show no significant changes or decreases during the Veteran’s active duty. See VA Examination (April 2011). Due to documentation of essentially normal hearing thresholds during active duty, the examiner opined the Veteran’s hearing loss was not related to service. While the Veteran is competent to report having experienced in-service noise exposure, he is not competent diagnose himself with left ear hearing loss or to link delayed onset hearing loss shown years after active service to noise exposure in service. These matters require audiological testing to ascertain whether the criteria for hearing loss for VA purposes are met and specialize knowledge of the anatomy of the ear and hearing mechanisms. Furthermore, the etiology of delayed onset hearing loss is not susceptible to lay observation. See Jandreau, supra. The Board has further considered the Veteran’s assertion that the results of the hearing examination were incorrect. See NOD (May 2012). However, the Board disagrees. A review of the evaluation report shows that the examiner’s opinion took into account 4 years of in-service audiological examinations, a current examination, and the Veteran’s own statements. No irregularities were noted on examination, and the Veteran has not claimed that any occurred. Therefore, the Board finds that the VA examination and opinion are well-supported by clinical findings and a full rationale. The examination report reflects a review of the claims file, a pertinent history and all clinical findings and opinions necessary for proper adjudication of the Veteran’s claim and is therefore adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board assigns greater probative value to the STRs, which reflect no complaints or findings for hearing/ear complaints along with the Veteran’s denial of hearing loss and ear trouble on post-deployment assessment in May 2009. This evidence is highly probative because it reflects the state of the Veteran’s wellness contemporaneous with his military service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). On balance, the weight of the evidence is against the claim for service connection for bilateral hearing loss. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 3. Entitlement to a compensable rating for prior to May 26, 2016 for right foot disability. 4. Entitlement to a rating in excess of 10 percent from May 26, 2016 for right foot disability. Issues 3-4. The Veteran contends that his right foot disability meets the criteria for higher ratings than assigned prior to and from May 26, 2016. The Board concludes that, while evidence supports the assignment of a 10 percent rating prior to May 26, 2016, the preponderance of the evidence is against a rating excess of 10 percent prior to and from May 26, 2016 for right foot disability. Neither the lay nor the medical evidence more nearly reflects the criteria for a rating in excess of 10 percent during the appeal period. The Veteran is rating under DC 5283 for residuals of a broken right foot, which provides a 10 percent rating for moderate malunion or nonunion, a 20 percent rating for moderately severe malunion or nonunion, a 30 percent rating for severe malunion or nonunion and a 40 percent evaluation for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5283. Terms such as “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The Board finds that the evidence more nearly reflects the criteria for a 10 percent rating, but no more, for right foot disability. X-rays in November 2012 showed ossification of the bone but not fusion. A November 2012 VA orthopedic consult reflects complains of constant pain in the right foot and swelling. Comparing x-rays from 2009 to 2012, the examiner stated that “after 3 years with no healing, there is an obvious nonunion of the fracture of the base of the right fifth metatarsal.” Tenderness over the base of the right metatarsal was also evident on examination. Resolving the benefit-of-doubt in the Veteran’s favor, the Board finds his right foot disability was manifested by moderate nonunion of the fracture prior to May 26, 2016. However, the evidence of record does not more nearly reflect severe malunion or nonunion or loss of use of the foot either prior to or from May 26, 2016. Report of VA examination dated in May 2016 reflects complaints of pain, but the Veteran denied that flare-ups impact he function of the foot or cause functional loss. Objectively, there was right foot pain on manipulation of foot, signs of metatarsalgia, and moderate malunion/nonunion of tarsal/metatarsal bones. The examiner noted that pain, weakness, fatigability, or incoordination significantly limits functional ability on repeated use over a period of time. The examiner characterized the severity of the Veteran’s foot injury as “moderate.” The examiner also found that there was not functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. A September 2016 VA treatment note reflects complaints of welling with walking and that the Veteran was “Not able to run much.” The evidence of record to include the report of being able to run suggests that the impairment associated with old foot fracture is not severe or worse as contemplated by the criteria for a rating in excess of 10 percent. The Board has considered whether a higher rating is warranted under any other potentially applicable criteria for the foot, but it is not. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-82, 5284. The Board accepts that the Veteran is competent to report his symptoms. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation than now assigned, as explained and discussed above. The Board finds that there is no basis to “stage” the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, a 10 percent rating is granted prior to May 26, 2016; but a rating in excess of 10 percent is denied both prior to and from this date. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 5. Entitlement to a rating higher than 30 percent for PTSD is remanded. The Board that the medical evidence of record is inadequate to fully evaluate whether the Veteran meets the criteria for a rating in excess of 30 percent. Therefore, to ensure that VA has met its duty to assist, the claim is remanded for additional development. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers that treated his PTSD since 2010. Make two requests for the authorized records from any identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from September 2016 to the Present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. C. A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel