Citation Nr: 18157604 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-16 604 DATE: December 13, 2018 ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for a left hand disability is denied. Service connection for psychosis for the purpose of establishing eligibility to treatment only pursuant to the provisions of 38 U.S.C. § 1702 is denied. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for left upper extremity (LUE) radiculopathy is remanded. Entitlement to service connection for left lower extremity (LLE) radiculopathy is remanded. Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD), is remanded. Entitlement to a compensable disability evaluation for residuals of a right fifth digit fracture is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a bilateral hearing loss disability under 38 C.F.R. § 3.385. 2. The preponderance of the evidence is against finding that the Veteran’s left hand disability began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence shows that the Veteran did not have an active psychosis that developed within two years of separation from active duty service nor does the Veteran currently have such a diagnosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for entitlement service connection for a left hand disability have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for psychosis for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702 have not been met. 38 U.S.C. §§ 1702, 5107(b); 38 C.F.R. §§ 3.12, 3.384. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1985 to April 1992. 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). Sensorineural hearing loss shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For the purpose of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold at any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when he auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater, or when speech recognition scores utilizing the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. The absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. at 159; 38 U.S.C. § 1154. It has been established that the threshold for normal is from 0 to 20 decibels. Id. 1. Entitlement to service connection for bilateral hearing loss disability. The Veteran contends that he has a hearing loss disability caused by or the result of in-service noise exposure (injury/event). 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 hearing loss disability 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). In June 2017, the Veteran was afforded a VA audiological evaluation. Puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz were 15, 10, 10, 25, and 25 decibels, respectively. Puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz were 15, 15, 20, 25, and 30 decibels, respectively. Speech discrimination scores were 94% in both the right and left ear. Thus, based on these results, the Veteran does not have a current hearing loss disability as defined by VA regulations. While private practitioner P.Y. stated in a September 2011 report that the Veteran had hearing loss, he did not provide the results of any puretone audiometric testing or clarify whether speech recognition was tested using the Maryland CNC test. He merely concluded that the Veteran had hearing loss of “20%” in the left ear and “30%” in the right ear, a finding that is meaningless since he does not explain the methodology he used to arrive at those percentages. Generally, 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 pure tone audiometry test. 38 C.F.R. § 4.85. There is no indication that the conclusions reached were predicated upon audiological testing as required under VA law. Therefore, the medical opinion has no probative value. While the Veteran is competent to report hearing loss, he is not competent to say that he meets the VA standard for a hearing loss disability, which is required to establish a claim for service connection for hearing loss. a current hearing loss disability, he is not competent to provide a diagnosis in this case. Again, the presence of a hearing loss disability is made through an audiological examination conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85. The Veteran’s medical opinion is not predicated on any testing that meets the VA requirements and the presence of disability due to hearing loss as defined by VA is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Veteran’s medical opinion has no probative value. The Board gives more probative weight to the June 2017 VA audiological examination, which showed that the Veteran did not meet the criteria for hearing loss for VA purposes. This is more probative than the Veteran’s uncorroborated opinion and that of the private physician as it was obtained by a state-licensed audiologist, and included a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the Veteran does not meet the criteria for a hearing loss disability as defined by VA regulations at 38 C.F.R. § 3.385. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for left hand disability. The Veteran is seeking entitlement to service connection for a left hand disability. The Veteran contends that he injured his left hand in September 1991 at the same time he fractured service connected his right fifth finger. 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 diagnosis of posttraumatic degenerative joint disease of the left hand, the preponderance of the evidence is against finding that it began during active 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 treatment records show that in September 1991, the Veteran injured his right hand after it was hit with a door. However, STRs contemporaneous with this injury reflect no complaints or findings for left hand injury, as now claimed. While the Veteran is competent to report that he injured his left hand when a door hit it, his reports are largely not credible given the contemporaneous medical record which shows no findings or complaints of left hand injury. It simply defies belief that the Veteran injured both hands as claimed and that only one hand injury was recorded at the time.. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). While the Board is often prohibited from finding lay evidence not credible on the sole basis of a lack of contemporaneous medical records, silence in a medical record can sometimes be relied upon as contradictory evidence; specifically, the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (Lance, J., concurring) (discussing credibility in relation to medical evidence); Fed. R. Evid. 803 (7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). For this negative inference to be made, the Board must make two findings: first, that the record being evaluated is complete in relevant part; and, second, that the injury, disease, or related symptoms would ordinarily have been recorded had they occurred. Here, there is no reason to believe that there are any outstanding service treatment records that have not been associated with the Veteran’s claims folder, and neither the Veteran nor his representative have alleged that there are additional outstanding service treatment records that VA has failed to obtain. Additionally, the Board finds that if the Veteran had injured his left hand in September 1991, it is highly likely that this injury would have been documented along with the right hand injury. The Veteran’s service treatment records contain several notes documenting ongoing treatment for the Veteran’s right hand and none of those treatment notes indicates that the Veteran also injured his left hand in the same accident. Given the detailed record of the Veteran’s right hand injury, it is simply not reasonable to believe that a separate injury to the left hand, occurring at the same time, would not also be documented. In a September 2011 report, Dr. P.Y. opined that the Veteran’s left hand disability is at least as likely as not related to the Veteran's alleged in-service left hand injury; however, this opinion is not probative because it relies on the Veteran’s history of in-service injury to the left-hand, which the Board finds is not credible as explained above. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). On balance, the weight of the evidence is against the claim. The claimed injury is not shown in service and abnormal left hand pathology is first documented long after service separation. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 3. Eligibility for treatment for psychosis under 38 U.S.C. 1702. The Veteran seeks service connection for psychosis for the purpose of establishing eligibility for treatment. It does not appear that the Veteran has ever contended that he suffered from psychosis in service or was diagnosed with psychosis within two years of separation from service. The Boards concludes that the Veteran has not met the criteria for entitlement to service connection for psychosis for the purpose of establishing eligibility for treatment. 38 U.S.C. § 1702; 38 C.F.R. §§ 3.12, 3.384. Under 38 U.S.C. § 1702 (a) , any Veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before July 26, 1949, in the case of a Veteran of World War II, before February 1, 1957, in the case of a Veteran of the Korean conflict, before May 8, 1977, in the case of a Vietnam era Veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a Veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service. 38 U.S.C. § 1702. VA has defined the term psychosis for purposes of presumptive service connection at 38 C.F.R. § 3.384. Under 38 C.F.R. § 3.384, the term psychosis is defined so as to include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. The Veteran’s service treatment records are negative for any evidence of psychosis, and the Veteran has not presented any evidence or argument that he was diagnosed with psychosis as defined by VA regulations within two years following his separation from service. Additionally, while the Veteran has been diagnosed with depressive disorder and adjustment disorder, current medical records, including both VA and private records, do not include a diagnosis or other medical evidence of psychosis. The Veteran does not have a current diagnosis of psychosis and the evidence shows that the Veteran did not develop psychosis within two years of separating from active service. The weight of the evidence is against the claim as the Veteran is not shown to be eligibility for treatment for psychosis under 38 U.S.C. § 1702. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability is remanded. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for a left hip disability. 4. Entitlement to service connection for a right hip disability. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to service connection for a right knee disability. 7. Entitlement to service connection for a left ankle disability. 8. Entitlement to service connection for a right ankle disability. 9. Entitlement to service connection for left upper extremity (LUE) radiculopathy. 10. Entitlement to service connection for LLE radiculopathy. Remanded Issues 1-10. To ensure VA has met its duty to assist, remand is necessary for a VA examination with a medical opinion. 38 C.F.R. § 3.159(c). The Board also finds that the July 2012 VA medical opinion that determined that the Veteran’s low back disability is not related to service is inadequate. The opinion does not fully address whether any current low back disability is related to the Veteran's noted in-service complaints of low back pain. The examiner concluded that the Veteran’s current low back pain is likely due to his current diagnosis of lumbar degenerative joint disease, but that there is no indication that the Veteran was diagnosed with degenerative joint disease of the lumbar spine in service. However, the examiner does not address whether there is a relationship between the Veteran's in-service low back pain and muscle strain and his current disability. Therefore, a new VA examination with a medical opinion is necessary. Regarding the Veteran’s claims for the cervical spine, hips, knees, and ankles disability, the Veteran has claimed that these conditions are the result of a 1988 accident where he slipped on ice and fell. Although there is no record of an accident of the type the Veteran described noted in his service treatment records, and the claims file is devoid of any post-service treatment records, the Board believes that a VA examination with a medical opinion is necessary because the recent private medical opinion of Dr. P.Y. satisfies the low threshold whereby VA is required to provide a VA examination. McClendon v. Nicholson, 20 Vet App. 79 (2006). In this regard, the Veteran is competent to report in-service injury and the private medical opinion indicates that there are current disorders related thereto. Also, the Board observes that Dr. P.Y. did not provide any of his private treatment records as to these matters. As such, any outstanding treatment records from Dr. P.Y. should be obtained and associated with the record to supplement his medical opinion in these matters. 11. Entitlement to service connection for an acquired psychiatric disability, to include depression and PTSD. As for PTSD, although several treatment providers have noted that the Veteran has experienced symptoms of PTSD, it does not appear that he has actually been diagnosed with this disability. On remand, the Veteran should be afforded a VA examination to clarify whether the Veteran currently meets the diagnostic criteria for PTSD, as well as to identify any other acquired psychiatric disability for which the Veteran meets the diagnostic criteria. For each identified condition, the examiner is asked to opine whether it is at least as likely as not related to the Veteran's service. The examiner should address the Veteran's claim that he was traumatized after a fellow soldier in his unit was violently killed, and explain whether this stressor is sufficient to cause PTSD. The examiner is also asked to address whether the Veteran suffers depression related to his physical limitations, to include those due to his service connected residuals of a right fifth digit fracture. 12. Entitlement to a compensable disability evaluation for residuals of a right fifth digit fracture. The Veteran has not been afforded a VA examination of his service connected right fifth digit disability since October 2012, more than six years ago. Where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991). An examination too remote for rating purposes cannot be considered "contemporaneous." See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). On remand, the Veteran should be afforded a new VA examination to determine the current severity of his service connected disability. 13. Entitlement to a total disability evaluation based on individual unemployability. The issue of TDIU is inextricably intertwined with the claim for increase. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit supporting lay (“buddy”) statements from any service members or family who can corroborate with supporting details, if possible, his alleged in-service slip and fall with injury to the neck, back, hips, knees, and ankles. 2. Ask the Veteran to complete a VA Form 21-4142 for Dr. P.Y., as well as any other medical providers who have treated the Veteran for his claimed disabilities since service. Make two requests for the authorized records from each provider identified by the Veteran, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether the Veteran’s claimed in-service stressor is sufficient to support a diagnosis of PTSD. 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, to include as secondary to the Veteran's service connected disabilities or as due to the Veteran's reported in-service stressor. A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back/lumbar spine disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s in-service documented in-service complaints of low back pain and his diagnosis for muscle strain. A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge 5. Schedule the Veteran for an examination or examinations by an appropriate clinician to determine the nature and etiology of any neck/cervical spine disability, bilateral hip disability, bilateral knee disability, and bilateral ankle disability. The examiner must opine whether any diagnosed cervical spine, hip, knee, or ankle condition is at least as likely as not related to an in-service injury, event, or disease. The examiner is asked discuss Dr. P.Y.’s September 2011 medical opinion, to include whether he or she agrees with Dr. P.Y.’s conclusions and why or why not. A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Schedule the Veteran for an examination of the current severity of his residuals of a right fifth digit fracture. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right fifth digit fracture alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. D. Anderson, Counsel