Citation Nr: 18156014 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-15 345 DATE: December 6, 2018 ORDER Service connection for hearing loss is denied. Service connection for Parkinson’s disease is denied. REMANDED Service connection for a psychiatric disorder, to include adjustment disorder, mixed anxiety and depression claimed as nervous disorder also as anxiety, is remanded. Service connection for a sleep disorder, diagnosed as insomnia, is remanded. Service connection for posttraumatic stress disorder is remanded. Service connection for hypertension is remanded. Service connection for joint disease is remanded. FINDINGS OF FACT 1. The Veteran does not have a hearing loss related to service. 2. 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 Parkinson’s disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.385. 2. The criteria for service connection for Parkinson’s disease have not been met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1967 to June 1969. This matter is on appeal from an August 2014 rating decision. In September 2015, the Veteran filed a new claim of service connection for hypertension and erectile dysfunction. A January 2016 rating decision granted service connection for erectile dysfunction as secondary to diabetes. The rating decision also denied service connection for hypertension as secondary to diabetes. As the hypertension issue was already on appeal, the January 2016 rating decision is nonconsequential and neither confers or deprives the Board of jurisdiction over that issue. See Juarez v. Peake, 21 Vet. App. 537, 543 (2008) (discussing Myers v. Principi, 16 Vet. App. 228 (2002)) (once an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board; only a subsequent Board decision can resolve an appeal that was initiated but not completed). In July 2018, the Veteran waived RO jurisdiction of recently received evidence. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. In the absence of a proof of present disability there can be no claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (internal citation omitted). The requirement of a “current disability” is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The standard is whether a disability exists at the time the claim was filed. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. 1. Service connection for hearing loss The Veteran contends that he has a hearing impairment related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss and the evidence shows that in-service injury occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis began during service or is otherwise 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). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley, 5 Vet. App. at 157. For the purposes of applying the laws administered by VA, impaired 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, 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. Here, a November 2013 VA audiology outpatient note shows a diagnosis of hearing loss for VA purposes, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 45 60 55 LEFT 20 30 50 60 60 Speech recognition scores were 70 percent both ears. Because auditory thresholds at this examination were 40 decibels or greater in any of the frequencies, a hearing loss for VA purposes is established. See 38 C.F.R. § 3.385. In light of this evidentiary record, the first requirement to establish service connection, evidence of a current disability, has been met as to the claim. See Davidson, 581 F.3d at 1316. There is also evidence of an in-service event. The Veteran served in the Republic of Vietnam during the Vietnam era from November 1967 to November 1968. He was awarded the Combat Infantry Badge and a Purple Heart. As shown in his service treatment records (STRs) and service personnel records (SPRs), he received a fragment wound to the right wrist as a result of hostile action while on a combat operation. This evidence indicates acoustic trauma during combat. As such, an in-service injury is established. A hearing loss was not shown during service. His hearing at his June 1969 separation examination was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 -- 10 LEFT 10 0 0 -- 10 Because auditory thresholds at this examination were not 40 decibels or greater in any of the frequencies, or 26 decibels or greater in at least three of the frequencies (and because speech recognition scores were not given), a hearing loss disability for VA purposes was not established during service. See 38 C.F.R. § 3.385. There is also no indication of a hearing loss disability within one year of service. A nexus to service is not otherwise established. A May 2014 VA examiner opined that the Veteran’s hearing loss was not at least as likely as not related to service. The rationale was that the audiological evaluations found in the claims file showed bilateral normal hearing and no evidence of complaints of hearing loss for more than 40 years after service. However, according to the examiner, the current VA audiological evaluation indicated normal hearing with a mild to moderate hearing loss at the higher frequencies bilaterally, and other factors like normal aging process can cause hearing loss. Hence, the examiner found it “reasonable to conclude that the hearing loss is less likely as not related to the military service.” The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his hearing impairment is related to service, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized knowledge concerning the nature of acoustic trauma, the risk factors and development of hearing loss, and the interpretation of complicated diagnostic audiologic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiner’s opinion. In conclusion, the evidence shows a hearing loss for VA purposes and acoustic trauma during service, but the most probative evidence establishes that there is no nexus between the two. For this reason, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Service connection for Parkinson’s disease The Veteran contends that he has Parkinson’s disease due to service, including his presumed Agent Orange exposure. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of Parkinson’s disease 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). The Veteran’s VA and private medical records do not indicate a diagnosis of Parkinson’s disease. Moreover, a VA examiner evaluated the Veteran in June 2014 and determined that the Veteran was not diagnosed with Parkinson’s disease and had no cardinal symptoms of the disease. As such, there is no medical evidence of a diagnosis. While the Veteran believes he has a current diagnosis of Parkinson’s disease, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge of Parkinson’s disease, including the ability to identify and interpret complicated medical findings. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As there is currently no indication of a diagnosed medical condition, the claim must be denied. See Brammer, 3 Vet. App. at 225; Romanowsky, 26 Vet. App. at 293; McClain, 21 Vet. App. at 321. REASONS FOR REMAND 1. Service connection for a psychiatric disorder, to include adjustment disorder, mixed anxiety and depression, claimed as nervous disorder also as anxiety 2. Service connection for a sleeping disorder 3. Service connection for posttraumatic stress disorder (PTSD) As issues 1-3 are related, the Board will address them together. To this extent, the Veteran’s claim for a sleep disorder was non-specific. Therefore, it is interpreted as broad in scope. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, the only diagnosed sleep disorder of record is insomnia, so the Board finds that this claim is appropriately discussed in the context of his psychiatric claims. The Veteran contends that his current psychiatric conditions are due to service, including combat in Vietnam. It is undisputed that he served in combat in Vietnam. The Veteran has also indicated ongoing symptoms since service. For example, he wrote in his July 2013 claim that he disabilities began “[s]ince I got out of the Army.” Likewise, an April 2014 VA psychology note reflects an assessment that “[e]ven though his symptoms may have an onset on his traumatic experiences, [he] does not appear to have developed ways of better coping with his feelings except by manifesting his anger.” This assessment, by implication, indicates ongoing symptoms since his combat in Vietnam. The Board finds that a new VA examination is needed. A VA examiner in May 2014 opined that the Veteran’s diagnosis was less likely than not related to service. The rationale was that there was no temporal relationship between adjustment disorder symptom onset and the military stressors. The Board finds that the examiner’s opinion is not based on a complete medical history. At the examination, the Veteran gave a history of depressive symptoms for 20 to 25 years, which would have been approximately 1989-1994. This was many years after service. He also complained of sleep problems for “15 or 20 years, maybe more.” The Board notes that this latter statement is very imprecise and could include symptoms since service. In fact, the examiner did not take into consideration the other evidence indicating symptoms since his combat in Vietnam, such as in the July 2013 statement and at the April 2014 treatment. This omission is important given the VA examiner’s brief and conclusory rationale, which provides the Board little insight into how the examiner reasoned to the conclusion. Thus, a new VA examination is needed. 4. Service connection for hypertension is remanded. This issue is remanded for a new VA examination. A private doctor opined in an undated statement that the Veteran had hypertension and he “is 100% disable [sic] and unable to work due to his medical conditions clearly related to military service.” (Emphasis added.) The doctor gave no rationale indicating how he reached this conclusion. Nonetheless, it provides an indication of a nexus. The Board also notes that in the Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS), upgraded hypertension from its previous classification in the category of “limited or suggestive” evidence of an association to Agent Orange to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. In light of this record, the Board finds that a VA examination is needed to address the potential relationship between the Veteran’s hypertension and service, including Agent Orange exposure. 5. Service connection for joint disease is remanded. This issue is remanded for a VA examination. VA medical records in October 2013 show diagnoses of degenerative arthritis in the cervical spine, lumbar spine, shoulders, and hips. The private doctor opined in the undated statement also identified the Veteran as having degenerative joint disease and arthritis of both shoulders, and “is 100% disable [sic] and unable to work due to his medical conditions clearly related to military service.” (Emphasis added.) The doctor gave no rationale indicating how he reached this conclusion. Nonetheless, it also provides an indication of a nexus to degenerative joint disease. As such, a VA examination is needed. The matters are REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disability, including PTSD. The examiner should address the following: (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (b.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. In answering these questions, the examiner is asked to consider the statements from the Veteran indicating symptoms starting after service in Vietnam. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Likewise, the examiner should only rely on silence in the medical records if it can be explained: (a) why the silence in the record can be taken as proof that the symptom did not occur, (b) why the fact would have normally been recorded if present, or (c) why absence in the medical records is medically significant. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of hypertension. The examiner is asked to address each of the following: (a.) Whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s presumed Agent Orange exposure. In answering this question, the examiner is asked to disregard whether the disorder is one for which a “presumption” is established and, instead, to answer whether his hypertension is a result of Agent Orange exposure even though it is not on the list of “presumptive” diseases. To this extent, the examiner should consider the Veterans and Agent Orange: Update 11 (2018), where the National Academies of Sciences, Engineering and Medicine (NAS), upgraded hypertension from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his degenerative joint disease. For each diagnosis, including the cervical spine, shoulders, lumbar spine, and hips, the examiner must address the following: (a.) Whether the diagnosis at least as likely as not (1) began during or is related to active service including combat in Vietnam, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel