Citation Nr: 18157482 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-61 855 DATE: December 13, 2018 ORDER Entitlement to service connection for tuberculosis is denied. Entitlement to an initial disability rating higher than 50 percent for bilateral hearing loss is denied. REMANDED Entitlement to an initial compensable rating for removal of teeth, dental trauma (a dental disorder) is remanded. Entitlement to an initial disability rating higher than 10 percent for psychological impact of service-connected disability associated with a dental disorder (a psychiatric disorder) is remanded. FINDINGS OF FACT 1. The Veteran has no current diagnosis for tuberculosis. 2. The Veteran’s bilateral hearing loss is manifested by no worse than Level XI right ear hearing loss and no worse than Level VI left ear hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for tuberculosis have not been met. 38 U.S.C. §§ 1011, 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.304. 2. The criteria for a rating higher than 50 percent for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to October 1975. These matters come to the Board of Veterans’ Appeals (Board) on appeal from May 2014 and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2016 and August 2017, VA received additional evidence from the Veteran, including a VA medical record. However, the Veteran’s substantive appeal for the issues herein was received after February 2, 2013, and 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a Veteran or his or her representative submits evidence to the AOJ or the Board with or after submission of a substantive appeal. 38 U.S.C. § 7105(e); see VA Fast Letter 14-02 (May 2, 2014). Thus, a remand to consider the additional evidence developed by VA is not warranted. Service Connection for Tuberculosis 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; 38 C.F.R. § 3.303. 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 between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A necessary element to establish entitlement to service connection is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran contends that he incurred tuberculosis during active service. The Veteran’s service treatment records do not contain any complaints or diagnoses of tuberculosis. The October 1975 separation examination notes a normal endocrine system, abdomen and viscera examinations, and chest X-ray. Urinalysis was negative for sugar and albumin. At no time during the pendency of this claim has there been a diagnosis of tuberculosis. The record does not contain any service treatment record evidence of any diagnosed tuberculosis, nor is there medical evidence showing any such diagnoses since service. In the absence of proof of such present disability, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is no diagnosis of tuberculosis by a medical professional, and the Veteran is not shown to be competent to diagnose such disabilities. Although he is competent to attest as to symptoms he has observed, a diagnosis of tuberculosis is not a simple medical condition susceptible to lay diagnosis and, there is no evidence of record to show that his reported symptoms have supported a diagnosis by any medical professional. Nor is tuberculosis a condition for which lay observation has been found to be competent to establish the presence of disability. Charles v. Principi, 16 Vet. App. 370 (2002). As there is no diagnosis of tuberculosis, it is unnecessary to consider whether the claim meets the criteria of any other elements of service connection regarding an in-service incurrence or aggravation of a disease or injury; or a causal relationship between the present disability and any disease or injury incurred or aggravated during service, the so-called “nexus” requirement including criteria of 38 C.F.R. §3.304(f). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The preponderance of the evidence is against the claim for service connection for tuberculosis. There is no doubt to be resolved and service connection is not warranted. 38 U.S.C. § 5107(b). Higher Rating for Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 5 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct times in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of “staged ratings” would be necessary. Presently, the Veteran’s service-connected bilateral hearing loss has been assigned a 50 percent rating under DC 6100. The Veteran contends that his hearing disability is worse than the currently assigned evaluation. Therefore, he alleges that he is entitled to an increased rating. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI and Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. On the authorized VA audiological evaluation in May 2014, pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 70 90 90 LEFT 25 25 55 60 65 The testing revealed a right ear pure tone threshold average of 67.5 and a left ear pure tone threshold average of 51.25. Speech recognition was 32 percent in the right ear and 60 percent in the left ear, as measured by the Maryland CNC test. As the Veteran had pure tone thresholds of 30 decibels or less at each frequency from 1000 Hertz, and 70 decibels or more at 2000 Hertz of the right ear, both Table VI and Table VIA were considered. 38 C.F.R. § 4.86(b). Using Table VI and Table VIA in 38 C.F.R. § 4.85, the Veteran received a numeric designation of XI under Table VI and a V under Table VIA for the right ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of VI under Table VI for the left ear. Such a degree of hearing loss warrants a 50 percent rating under Table VII. On the authorized VA audiological evaluation in August 2016 VA, pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 75 95 90 LEFT 25 20 55 60 60 The testing revealed a right ear pure tone threshold average of 71 and a left ear pure tone threshold average of 49. Speech recognition was 52 percent in the right ear and 80 percent in the left ear, as measured by the Maryland CNC test. As the Veteran had pure tone thresholds of 30 decibels or less at each frequency from 1000 Hertz, and 70 decibels or more at 2000 Hertz of the right ear, both Table VI and Table VIA were considered. 38 C.F.R. § 4.86(b). Using Table VI and Table VIA in 38 C.F.R. § 4.85, the Veteran received a numeric designation of VIII under Table VI and a VI under Table VIA for the right ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of III under Table VI for the left ear. Such a degree of hearing loss only warrants a 20 percent rating under Table VII. Therefore, the medical evidence of record does not indicate that a disability rating higher than 50 percent is warranted at any time during the period on appeal. The Board has considered the lay evidence of record, which is probative insofar as it reports observable symptoms, such as difficulty hearing. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that such lay statements assert entitlement to an increased disability rating, they are less probative than the objective evidence of record discussed herein which permit the required mechanical application of the Rating Schedule to numeric designations assigned based upon audiometric test results. See Lendenmann, supra. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of entitlement to a higher disability rating for bilateral hearing loss. As the preponderance of the evidence is against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Higher Rating for a Dental Disorder The Veteran’s service-connected dental disorder is assigned a noncompensable disability rating under DC 9999-9913. Under this DC, a noncompensable rating is assigned where loss of the masticatory surface can be restored by suitable prosthesis. In an August 2017 letter, the Veteran alleged that a higher rating was warranted, as the complete loss of his lower teeth could not be restored with a suitable prosthesis. In support of his contention, the Veteran submitted VA medical treatment notes dated March 2017 indicating that he was to be fitted for new lower dentures. The note indicates that the Veteran had six previous failed attempts to fabricate lower complete dentures. The Veteran argued in the August 2017 letter that the most recent fitting discussed in the March 2017 medical notes was unsuccessful and thus, a 30 percent rating for loss of the lower teeth is warranted under DC 9999-9913. A review of the record shows that the Veteran has not undergone an examination to assess the severity of his dental disorder. In light of the complaint of worsening symptoms, a new examination to ascertain the current severity of the Veteran’s dental disorder is warranted. The August 2017 letter indicates that there are outstanding medical records relating to this claim. As such, these records must be obtained and associated with the claims file. Higher Rating for a Psychiatric Disorder The Veteran’s service-connected psychiatric disorder is assigned a 10 percent disability rating under DC 9440. Under this DC, a 10 percent rating is warranted for 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 continuous medication. In correspondence dated April 2016 and December 2016, the Veteran stated his psychiatric disorder has worsened as he has experienced additional symptoms of increased anxiety, decreased socialization, panic attacks, and sleep impairment. The Veteran attributes these symptoms to his service-connected dental disorder and bilateral hearing loss. Additionally, the Board notes that the Veteran’s last VA compensation examination conducted to evaluate the severity of his psychiatric disorder was in December 2014, i.e., four years ago. The Board notes that the examination does not indicate psychiatric symptoms of anxiety, sleep impairment, or panic attacks. Where the Veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the state of the condition, the VA must provide a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43, 186 (1995). In light of the complaint of worsening symptoms, a new examination to ascertain the current severity of the Veteran’s psychiatric disorder is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records dated from October 2016 to the present. All obtained records should be associated with the evidentiary record. 2. After the above development has been completed, schedule the Veteran to undergo a VA examination to determine the severity of his service-connected psychiatric disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination reports must include a notation that this record review took place. The complete rationale for all opinions should be set forth. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. 3. Schedule the Veteran to undergo a VA examination to determine the severity of his service-connected dental disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination reports must include a notation that this record review took place. The complete rationale for all opinions should be set forth. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel