Citation Nr: 18156797 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-44 736 DATE: December 11, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for traumatic brain injury (TBI) with memory loss is denied. Entitlement to service connection for a headache disorder is denied. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness is remanded. Entitlement to service connection for a back disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has bilateral sensorineural hearing loss or tinnitus due to a disease or injury in service, to include in-service noise exposure. 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 a TBI with memory loss, or a headache disorder, to include as due to an undiagnosed illness or chronic multisymptom illness. 3. The Veteran’s PTSD is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but not occupational and social impairment with reduced reliability and productivity or worse. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss and tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for traumatic brain injury with memory loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for a headache disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to August 1986, from February 1987 to March 1989, and from December 1990 to June 1991. The Veteran’s last period of active duty includes service in the Persian Gulf War. The Board notes that the Veteran identified irritable bowel syndrome (IBS) on his September 2016 substantive appeal, however, no notice of disagreement was filed and the issue is not pending appeal. Should the Veteran desire to pursue his claim of service connection for IBS, he should consult his representative. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection can also be established on a secondary basis for a disability that is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). 1. Entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran asserts that his tinnitus and hearing loss is the result of his time in the Persian Gulf when a scud rocket attack landed “a rocket close enough to knock [him] off [his] feet.” In addition to the general requirements for service connection, there are also specific requirements regarding what constitutes a hearing loss disability under VA law. The threshold for normal hearing is from 0 to 20 decibels (dB). Hensley v. Brown, 5 Vet. App. 155 (1993). 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 Hz is 40 dB or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s service medical records are silent for complaints of tinnitus or reported hearing problems. There are several entrance and separation examinations, as well as reports of medical history, of record: March 1985, November 1986, February 1989, May 1991, and August 1991. These records are silent for report or notation of hearing problems or tinnitus. The Veteran’s February 1989 separation audiological evaluation notes Puretone thresholds in decibels as follows: Hertz 500 1000 2000 3000 4000 Right 15 10 10 05 10 Left 10 15 10 10 05 The Veteran’s May 1991 separation audiological evaluation notes Puretone thresholds in decibels as follows: Hertz 500 1000 2000 3000 4000 Right 25 20 15 15 20 Left 20 10 00 00 05 During the April 2014 VA examination, the Veteran reported difficulty hearing on the telephone and difficulty understanding conversation in background noise. As a result of his hearing loss, he has to get close to hear and ask others to repeat themselves. The Veteran also reported constant, bilateral tinnitus with an onset of tinnitus sometime after separation from service. The Veteran was assessed with bilateral sensorineural hearing loss in the frequency range of 6000Hz or higher. His speech discrimination score was 100 percent in the right ear and 96 percent in the left ear. Puretone thresholds in decibels were as follows: Hertz 500 1000 2000 3000 4000 Right 20 15 15 15 25 Left 10 15 15 20 25 The examiner opined that the Veteran’s bilateral hearing loss was less likely than not related to his military service. As rationale for the opinion, the examiner noted that the Veteran’s February 1989 separation physical demonstrated normal hearing. Additionally, a May 1991 release from active duty (REFRAD) evaluation demonstrated normal hearing with no significant threshold shifts. The examiner also opined that it was less likely than not that the Veteran’s tinnitus was related to his military service. As rationale for this opinion, the examiner noted that the Veteran experienced normal hearing upon separation from the military and demonstrated no significant threshold shifts from time of entry. The examiner noted there were no objective factors for which the etiology of tinnitus could be attributed. An October 2017 audiological evaluation is of record. The Veteran’s discrimination score was 90 percent in each ear, but it is unclear what word-list the examiner used for testing. Puretone thresholds in decibels were as follows: Hertz 500 1000 2000 3000 4000 Right 30 25 30 35 45 Left 30 35 35 35 40 The Board concludes that, while the Veteran has a current diagnosis of bilateral sensorineural hearing loss and tinnitus, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses 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). The medical evidence of record indicates that the Veteran did not experience hearing loss or report any tinnitus until decades after his separation from service. The VA examiner found no causal relationship between the Veteran’s current tinnitus and hearing loss and his military service. Significantly, the VA examiner noted that the Veteran’s separation audiological evaluations indicate normal hearing with no significant threshold shifts identified. The VA examiner’s opinion is considered probative and afforded great weight. The opinion was given with consideration of the Veteran’s medical records, lay assertions, and specialized medical knowledge. Further, the rationale provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran is competent to report having experienced symptoms of hearing loss and tinnitus, he is not competent to provide a diagnosis in this case or determine that these symptoms are etiologically related to any in-service noise exposure. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the objective medical evidence and the VA examiner’s opinion. Based on the foregoing, the Board finds that service connection for bilateral hearing loss and tinnitus is not warranted as the record fails to demonstrate in-service complaints of hearing problems or tinnitus; abnormal hearing during active service; or, a significant threshold shift between service audiological evaluations. 2. Entitlement to service connection for TBI with memory loss and a headache disorder, to include as due to an undiagnosed illness. The Veteran asserts that his TBI is a result of his time in the Persian Gulf when a scud rocket attack landed “a rocket close enough to knock [him] off [his] feet.” Additionally, the Veteran asserts that his TBI causes short term memory loss and headaches. Service connection may additionally be granted to a Persian Gulf War Veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal disorders)). 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under those provisions, service connection may be established for objective indications of a qualifying chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 U.S.C. § 1117, 38 C.F.R. § 3.317. Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317 (b). There are several entrance and separation examinations, as well as reports of medical history, of record: March 1985, November 1986, February 1989, May 1991, and August 1991. These records are silent for report or notation of a TBI, headache or memory problems sustained during active service. Similarly, the Veteran’s service medical records do not indicate complaints of, or treatment for a TBI, headache or memory problems. Post-service medical records are silent for complaint or treatment of headaches, memory problems (other than those associated with his PTSD), or a TBI. April 2014 VA examinations for headaches and PTSD note that the Veteran experienced intermittent bilateral headaches, but he was not diagnosed with a TBI, or headache or migraine disorder. The examiner indicated a negative response for any diagnosed illness for which no etiology was established. The Board concludes that the Veteran does not have a current diagnosis of a TBI with memory loss or a headache disorder, 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 medical evidence of record shows no indication that the Veteran sustained a head injury or TBI during his active service. Additionally, the medical evidence indicates that the Veteran does not have a headache disorder or diagnosed TBI. Similarly, the medical record contains no indication that the Veteran experienced memory problems other than those associated with his PTSD, which are addressed below. Neither the Veteran’s active service, nor his post-service treatment records mention headaches or a TBI with memory problems. While the Veteran is competent to report symptoms that he experiences such as headaches or memory problems, he is not competent to determine that such symptoms constitute a disability. While the Veteran believes he has a current TBI and associated disabilities of headaches and memory loss, the medical records demonstrate otherwise. The Veteran’s mere assertions alone are insufficient to establish an in-service injury or current diagnosis. Additionally, the Veteran has not been shown to have the medical knowledge necessary to determine whether a disability currently exists. The issue is medically complex, as it requires knowledge of the body systems and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the objective medical evidence. The Board acknowledges that the Veteran served in the Persian Gulf War and consideration has been given to whether he has an undiagnosed illness or a medically unexplained chronic multisymptom illness. However, as discussed above, the Veteran’s medical record fails to demonstrate objective indications of a chronic disability. Further, the Veteran was given a Gulf War examination in April 2014 which addressed his headache disorder. Notably, the examination indicates that there was no diagnosed illness for which no etiology was established. Based on the foregoing, the Board finds that service connection for a TBI with memory loss or a headache disorder is not warranted as the record fails to demonstrate a current disability, or any objective indication of chronic disability. Increased Rating The Veteran was granted service connection for PTSD in a May 2014 rating decision. The regional office ultimately assigned an initial 30 percent rating, effective September 5, 2012, a one-year retroactive effective date from his original claim for service connection under the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012. The Veteran disagrees with the assigned initial rating and asserts he is entitled to a higher rating for his PTSD. The Veteran’s service-connected PTSD is currently rated under Diagnostic Code 9411. Psychiatric disorders, however diagnosed, are rated under the General Rating Formula for Mental Disorders, and the criteria under this formula shall be considered no matter which diagnostic code is assigned. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the several grades of the disability. 38 C.F.R. § 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling disorder should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Under the General Rating Formula for Mental Disorders, a 30 percent disability rating is assigned when a psychiatric disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily in routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is assigned when a psychiatric disability causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is assigned when a psychiatric disability causes occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to such symptoms as: suicidal ideation, obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A 100 percent disability rating is assigned when a psychiatric disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, for the veteran’s own occupation, or own name. 38 C.F.R § 4.130, Diagnostic Code 9411 General Rating Formula for Mental Disorders. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The Veteran was afforded a VA PTSD examination in April 2014. The Veteran reported a “good” relationship with his children and an “okay” relationship with his spouse. He identified his spouse as a key part of his support system. At the time of examination, the Veteran was attending school and described his current school semester as challenging. He reported previous work as a truck driver, but was unable to continue due to his insulin dependence. The Veteran reported additional work history as a truck driver with promotion to plant manager and dispatcher. The examiner noted that the Veteran’s emotional problems have not caused him to miss any work in the past year or so. The Veteran described his past mental health symptoms to include avoidance, anger, restless sleep, avoidance, hypervigilance, intrusive memories, startle response, social withdrawal, and alcohol use. The Veteran was noted to experience current symptoms of anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss (such as forgetting names), difficulty in establishing and maintaining effective work and social relationships. The Veteran also reported a decrease in his alcohol use and was described as one who drinks occasionally in limited amounts. The Veteran reported no history of mental health treatment. In the past year, the Veteran reported engaging in telehealth treatment, which the examiner assessed as related to somatic rather than mental health. The Veteran was assessed with mild PTSD. Additionally, he was assessed with occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In his September 2016 substantive appeal, the Veteran reported that he has “issues with supervision.” He reported being a loner and that he disliked communication with his co-workers. He also reported that he does not like crowds or events in closed spaces. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a disability rating in excess of 30 percent. The Veteran does not experience the requisite limitations (occupational and social impairment with reduced reliability and productivity) for a 50 percent disability rating. The medical evidence indicates that the Veteran experiences mild psychiatric symptoms. The VA examination indicates that the Veteran currently experiences mild memory loss, panic attacks weekly, mild or transient symptoms of occupational and social impairment, chronic sleep impairment, anxiety, suspiciousness, and difficulty establishing and maintaining effective work and social relationships. The VA examiner made a specific finding that the Veteran experienced occupational and social impairment with mild or transient symptoms, which indicates the Veteran experiences less, rather than more, severe symptoms than his current 30 percent disability rating. The VA examination also indicates that the Veteran experiences mild occupational impairment. Notably, the Veteran’s mental health problems did not cause him to miss any work in the past year. The Veteran reported mild occupational impairment as well. While the Veteran was noted to have a history of promotions at work and current enrollment in school, he reported a challenging semester as compared to his prior one. The VA examination also indicates that the Veteran experiences mild social impairment as reflected in his relationships with his children and spouse, while experiencing symptoms of social withdrawal. The Veteran’s self-report similarly shows no indication that his PTSD disability causes reduced reliability and/or productivity. In written correspondence the Veteran reported that he does not like communication with his co-workers and “issues” with supervision. However, the Veteran did not report a reduction in productivity at work or impaired relationships with his co-workers or supervisors. Similarly, although the Veteran experiences mild memory problems, he did not report limitations in retaining work information or completing tasks. While the Veteran did report a dislike of crowds and closed spaces, he did not report information that would suggest reduced participation in social activities or difficulty maintaining social relationships. However, as noted above, the VA examination does indicate some social withdrawal and difficulty with effective work relationships. A review of the symptoms described in the VA examination report, coupled with the Veteran’s self-reported symptoms indicate that the Veteran experiences symptom severity most analogous to a 30 percent disability rating. Although the Veteran has some difficulty with social and occupational relationships, his PTSD symptoms as a whole cause mild impairment in his social and occupational functioning. As such, the Board finds that the Veteran’s current 30 percent disability rating for PTSD is appropriate and that a higher rating is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness or chronic multisymptom illness. The Veteran asserts that he experiences chronic fatigue syndrome as a result of his active service in the Persian Gulf. The April 2014 Gulf War examination shows no indication that the Veteran was evaluated for chronic fatigue syndrome. Accordingly, the Board has insufficient information to make a determination on this issue. 2. Entitlement to a TDIU is remanded. The Board notes that the issue of entitlement to a TDIU is part of a rating issue when such issue is raised by the record during the rating period. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has indicated that his PTSD symptoms, along with his non-service connect back pain, have rendered him unable to work. The Board notes that the evidence has reasonably raised the issue of entitlement to a TDIU in conjunction with the increased rating issue decided herein; therefore, a remand is necessary for the Agency of Original Jurisdiction (AOJ) to adjudicate entitlement to a TDIU in the first instance. 3. Entitlement to service connection for a back disorder is remanded. The Veteran asserts that he “injured his back” during his time in the Persian Gulf. No specific injury or time frame was noted. The Board notes that in correspondence and treatment visits unrelated to this claim, the Veteran reported a Scud missile attack close enough to him that he was knocked off his feet. A March 2008 VA treatment record indicates the Veteran carried a diagnosis of back pain as of November 2005. However, VA medical records from 2005 are not associated with the claims file. Accordingly, the Board has insufficient information to make a determination on this issue. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period prior to January 2007. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any chronic fatigue syndrome, to include as a result of an undiagnosed illness or chronic multisymptom illness. The examiner should determine whether the Veteran has chronic fatigue syndrome. If the Veteran is found to have chronic fatigue syndrome, the examiner should opine whether it is at least as likely as not that the Veteran has a medically unexplained multsymptom illness as a result of his Persian Gulf service. 3. Conduct all appropriate development needed to adjudicate the issue of entitlement to a TDIU, to include obtaining updated VA treatment records from January 2014 through the present. 4. Adjudicate the issue of entitlement to a TDIU. If necessary, obtain a medical opinion to determine whether any unemployability the Veteran experiences can be solely attributed to his service-connected PTSD. If necessary, return the case to the Board for further appellate review. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel