Citation Nr: 18157245 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-32 415 DATE: December 13, 2018 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a rating in excess of 10 percent for tinnitus is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for eczema of the left foot and ankle (claimed as chloracne) is granted. Entitlement to service connection for eczema of the right ankle (claimed as chloracne) is granted. Entitlement to service connection for a cognitive condition manifested by memory loss, to include as due to an undiagnosed illness, is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for glaucoma, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension or to include as due to an undiagnosed illness, is remanded. Entitlement to special monthly compensation based on loss of use of a creative organ is remanded. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee strain with medial meniscus tear and chondromalacia is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee strain is remanded. Entitlement to a rating in excess of 40 percent for varicose veins of the left lower extremity is remanded. Entitlement to a rating in excess of 40 percent for varicose veins of the right lower extremity is remanded. Entitlement to service connection for peripheral neuropathy/radiculopathy of the left leg and foot is remanded. Entitlement to service connection for peripheral neuropathy/radiculopathy of the right leg and foot is remanded. Entitlement to service connection for right knee ligament and nerve damage is remanded. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss has manifested in no more than Level I impairment, and the Veteran’s left ear hearing loss has manifested in no more than Level I impairment. 2. The Veteran is already in receipt of the maximum schedular rating for tinnitus. 3. 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 PTSD. 4. The Veteran’s skin disability of the left foot and ankle, claimed as chloracne, has been diagnosed as eczema and is proximately due to his service-connected varicose veins. 5. The Veteran’s skin disability of the right ankle, claimed as chloracne, has been diagnosed as eczema and is proximately due to his service-connected varicose veins. 6. A preponderance of the evidence is against finding that the Veteran has a current cognitive condition manifested by memory loss that is related to military service. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b), 4.85, 4.86, Diagnostic Code 6100. 2. There is no legal basis for the assignment of a disability evaluation higher than 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.87, Diagnostic Code 6260. 3. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to secondary service connection for eczema of the left foot and ankle are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 5. The criteria for entitlement to secondary service connection for eczema of the right ankle are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 6. The criteria for establishing entitlement to service connection for cognitive condition manifested by memory loss have not been met. 38 U.S.C. §§ 1110, 1131, 1117; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1973 to November 1997. This matter comes before the Board on appeal from a May 2011 Regional Office (RO) rating decision. Increased Rating Entitlement to a compensable rating for bilateral hearing loss is denied. The Veteran has claimed entitlement to a compensable rating for bilateral hearing loss. This disability is rated pursuant to 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100. In evaluating hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Level I indicates essentially normal acuity, while Level XI indicates profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone test. For each ear, the percent of speech discrimination and the puretone threshold average (which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four) are combined on Table VI to produce a Roman numeral designation. See 38 C.F.R. § 4.85. The Roman numeral designations for hearing impairment of each ear are combined on Table VII to determine the percentage evaluation. The Veteran underwent a VA examination in connection with this claim in November 2014. The resulting VA examination report shows puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 35 50 50 LEFT 40 35 40 60 55 The puretone threshold average was 43 decibels in the right ear and 48 decibels in the left ear. The Maryland CNC speech discrimination test revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The above audiological findings show Level I hearing acuity in the right ear and Level I hearing acuity in the left ear under Table VI. Under Table VII, these findings warrant a noncompensable (0 percent) rating. The Board acknowledges the Veteran’s reports of hearing difficulty. Specifically, he reports that it is hard to pick things up when there is background noise, especially at work when dealing with the public. Because disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100. Therefore, when applying the audiological examination test results, the Board is compelled to conclude that the preponderance of the evidence is against granting entitlement to a disability rating in excess of 0 percent. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the claim is not in equipoise. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, entitlement to a compensable disability rating for bilateral hearing loss is not warranted. Entitlement to a rating in excess of 10 percent for tinnitus is denied. The Veteran seeks a rating in excess of 10 percent for his tinnitus. Under Diagnostic Code 6260, a 10 percent rating is warranted for recurrent tinnitus. A higher schedular evaluation is not available. Per Note (2), only a single evaluation is to be assigned for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic 6260. The Veteran is currently in receipt of the maximum rating for tinnitus. Although he is competent to describe the symptoms of this condition, the Board finds that there is no basis upon which to award an increased schedular evaluation as he is already receiving the maximum award. Accordingly, his claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.317, service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service 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 (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). In the case at hand, the Veteran has qualifying Persian Gulf service under 38 C.F.R. § 3.317(e). Entitlement to service connection for PTSD is denied. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). In the case at hand, the Veteran served in the Persian Gulf during the Persian Gulf War and has provided credible descriptions of stressor events that he experienced while in the Persian Gulf. (See March 2010 VA Form 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD); March 2010 VA Form 21-4138, Statement in Support of Claim; and July 2016 VA Form 9, substantive appeal.) However, this claim must be denied due to a lack of a current diagnosis of PTSD or any other acquired psychiatric disability. The Veteran underwent VA examination in connection with this claim in February 2011. The resulting examination report diagnoses “[a]djustment disorder with mixed emotional feature that is currently in remission.” The Board finds this opinion to be highly probative, as it was authored by a psychiatrist who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). This opinion is based on her review of the record, as well as interview and examination of the Veteran. In her report, she demonstrated her familiarity with the Veteran’s reported stressors. She described the basis for her conclusion that a PTSD diagnosis is not warranted, as she noted that, while “[h]e had some stressors during service,” the Veteran “currently does not have any psychiatric symptoms.” She supported this opinion with a discussion of the pertinent facts of the Veteran’s case. The Veteran’s post-service medical records do not reflect that he has been treated for a psychiatric disability during the pendency of this appeal, and the Veteran has regularly denied psychiatric symptoms. (See, e.g., August 2013 outpatient treatment record.) There is no persuasive evidence showing symptoms that result in any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). The only remaining contrary opinion comes from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Specifically, the Board finds that the Veteran does not have the necessary medical expertise to diagnose a psychiatric disability. Service connection cannot be granted in the absence of proof of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of a diagnosis of a current disability, service connection for PTSD cannot be granted. Entitlement to service connection for eczema of the left foot and ankle (claimed as chloracne of the left foot) is granted. Entitlement to service connection for eczema of the right ankle (claimed as chloracne of the right foot) is granted. The Veteran has been diagnosed with eczema of the bilateral ankles and the left foot, and these disabilities have been found to be secondary to his service-connected varicose veins. (See December 2010 VA Gulf War examination report.) The Board therefore finds that entitlement to service connection for eczema of the left foot and ankle and of the right ankle is warranted. Entitlement to service connection for a cognitive condition manifested by memory loss, to include as due to an undiagnosed illness, is denied. The December 2010 VA Gulf War examination report notes that the Veteran denied a history of memory loss, and no cognitive impairment was found on examination. At his February 2011 VA PTSD examination, the Veteran’s immediate recall, short-term memory, and long-term memory were intact. With respect to cognitive functions, the Veteran was well-oriented to time, place, person, and purpose. The Veteran’s post-service treatment records reflect that he has neither complained of nor sought treatment for a cognitive disorder manifested by memory loss, and that no finding of such a condition has been made. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. The claim of entitlement to service connection for hypertension must be remanded for an etiology opinion. The Veteran has been diagnosed with hypertension, and no etiology opinion has been requested on examination. (See August 2004 Travis Air Force Base medical record.) Even though the Veteran indicated that he was not diagnosed with hypertension until 2005, the Board notes that the record contains readings indicating blood pressure ratings of 139/94 in July 1998, of 140/90 in April 1999, and of 134/95 in September 1999. This pertinent history should be discussed by the VA examiner. Entitlement to service connection for glaucoma, to include as secondary to hypertension or as due to an undiagnosed illness, is remanded. The glaucoma claim must be remanded as inextricably intertwined with the hypertension claim, as resolution of the hypertension claim may impact the adjudication of the glaucoma claim. A January 2011 VA examination report notes that risk factors for open angle glaucoma include hypertension (systemic vascular disease). Given that the Veteran’s claim of entitlement to service connection for hypertension is being remanded, the Board will also remand the glaucoma claim. If service connection for hypertension is granted, an opinion with respect to whether the Veteran’s glaucoma is at least as likely as not due to or aggravated by his hypertension will be necessary. Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension or to include as due to an undiagnosed illness, is remanded. A January 2011 VA Gulf War examination report opines that the most likely factors in the Veteran’s erectile dysfunction are hypertension and psychogenic factors. Therefore, the erectile dysfunction claim must be remanded as inextricably intertwined with the hypertension claim, as resolution of the hypertension claim may impact the adjudication of the erectile dysfunction claim. Entitlement to special monthly compensation based on loss of use of a creative organ is remanded. The claim of entitlement to special monthly compensation based on loss of use of a creative organ must be remanded as inextricably intertwined with the claim of entitlement to service connection for erectile dysfunction, as resolution of the erectile dysfunction claim may impact the adjudication of the special monthly compensation claim. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee strain with medial meniscus tear and chondromalacia is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee strain is remanded. While the record contains VA examinations regarding the Veteran’s back and knee disabilities, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements or pain on weight-bearing testing. Therefore, a remand is required so that the Veteran may undergo examination that satisfies the Correia requirements. An additional relevant opinion pertaining to flare-ups was also issued by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Entitlement to a rating in excess of 40 percent for varicose veins of the left lower extremity is remanded. Entitlement to a rating in excess of 40 percent for varicose veins of the right lower extremity is remanded. The most recent VA examination for the issues of entitlement to increased ratings for varicose veins of the left and right lower extremities was conducted in December 2010. These issues will accordingly be remanded to obtain more up to date findings. Entitlement to service connection for peripheral neuropathy/radiculopathy of the left leg and foot is remanded. Entitlement to service connection for peripheral neuropathy/radiculopathy of the right leg and foot is remanded. Entitlement to service connection for right knee ligament and nerve damage is remanded. While the back, bilateral knee, and varicose veins rating examinations are being conducted, information on the issues of entitlement to service connection for peripheral neuropathy/radiculopathy and the left and right legs, and right knee ligament and nerve damage, is likely to be obtained. On examination, findings that pertain to the peripheral neuropathy and radiculopathy claims and the right knee ligament and nerve damage claims should be obtained and etiology opinions should be offered for any current disabilities. The matters are REMANDED for the following action: 1. Obtain all relevant VA, Travis Air Force Base, and private treatment records not currently associated with the claims file, to include any Travis Air Force Base medical records that were created since the Veteran’s records were last obtained in December 2014. 2. Send the claims file to a qualified individual to obtain an opinion that addresses the following: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s hypertension had its onset in service or within a year of separation of service? In providing this opinion, please discuss the blood pressure readings of 139/94 in July 1998, of 140/90 in April 1999; and of 134/95 in September 1999. Please provide a complete medical rationale that includes a discussion of the facts of the Veteran’s case and pertinent medical principles. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. Afford the Veteran a VA examination to determine the current severity of his back, left knee, and right knee disabilities. The Veteran should be interviewed and all indicated tests and studies should be accomplished. All findings should be reported in detail. The Veteran’s claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should identify and completely describe all current symptomatology. The examiner should specifically state range of motion findings. (a) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion (1) on BOTH active and passive motion AND (2) in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing he or she should clearly explain why that is so. The examiner must note whether the Veteran demonstrates objective evidence of pain on motion and, if so, at what degree of motion he demonstrates such objective evidence. (b) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups, if the Veteran is not currently experiencing a flare-up and if he reports that he does experience flare-ups, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (c) The examiner should also identify and completely describe all manifestations of the Veteran’s varicose veins of the left and right lower extremities. (d) The examiner should also determine whether a diagnosis of radiculopathy of the left or right lower extremity is warranted and should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any such diagnosis is caused OR aggravated by the service-connected low back disability, left or right knee, or varicose veins disabilities. (e) The examiner should also identify any right knee ligament and nerve damage that is found on examination and should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any such diagnosis is caused OR aggravated by service-connected right knee strain or varicose vein disability. Please provide a complete medical rationale that includes a discussion of the facts of the Veteran’s case and pertinent medical principles. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. Following completion of the above, readjudicate the appeal, including the claims of entitlement to service connection for glaucoma, entitlement to service connection for erectile dysfunction, and entitlement to special monthly compensation based on loss of use of a creative organ. If any benefit remains denied, issue to the Veteran and his accredited representative a supplemental statement of the case and return the case to the Board. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel