Citation Nr: 18157974 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-55 504 DATE: December 14, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for fibromyalgia and myofascial pain syndrome is granted. Entitlement to a 70 percent rating for service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. At no time prior to the filing of the claim, or during the pendency of the claim, does the evidence show the Veteran has had a current bilateral hearing loss disability for VA purposes. 2. The lay and medical evidence is at least in relative equipoise as to whether the Veteran’s current tinnitus was incurred in service. 3. The competent, credible, and probative evidence raises a reasonable doubt as to whether the Veteran’s current fibromyalgia and myofascial pain syndrome is directly related to his military service. 4. Throughout the appeal period, the Veteran’s PTSD has been manifested by a variety of symptoms, including chronic depression, sleep disturbance, variations in motivation and mood, irritability, suicidal thoughts, impaired judgement, significant difficulty in interpersonal functioning, all of which fluctuated in frequency, but resulted in deficiencies in most areas, including interpersonal relations, judgement, thinking, and mood; however, total occupational or social impairment as a result of his symptoms is not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for fibromyalgia and myofascial pain syndrome have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code (DC) 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to January 1974. This matter is on appeal from rating decisions issued in October 2012, December 2012, and August 2014. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for bilateral hearing loss. The Veteran is seeking service connection for bilateral hearing loss which he has asserted is related to his exposure to noise while serving as an aircraft serviceman during service. See December 2010 Veteran statement. The Veteran was afforded a VA audiological examination in November 2012, during which the audiogram did not reveal a disabling hearing impairment in the left or right ear for VA purposes. While the November 2012 audiogram reflects that the Veteran experienced mild hearing loss in the right ear at 6000 Hertz, the Veteran’s auditory thresholds in either ear did not exceed 40 decibels or more for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz or exceed 26 decibels for at least three of these frequencies. Furthermore, the evidence does not reflect that his speech recognition score was less than 94 percent in either ear. See November 2012 VA examination. In fact, while the other evidence of record generally notes the Veteran experiences sensorineural hearing loss, the auditory thresholds required for a finding of hearing loss as defined by VA under 38 C.F.R. § 3.385 are not shown at any time prior to or during the pendency of the claim. See e.g., VA treatment records dated July 2014 to October 2016. Indeed, the evidentiary record does not contain any other audiograms that were conducted during or in close proximity to the appeal period and the Veteran has not identified any outstanding medical evidence which would show that the hearing impairment in his left or right ear meets the criteria for hearing loss under VA law. In evaluating this claim, the Board has considered the Veteran’s lay statements regarding the nature of his current bilateral hearing impairment; however, a lay person is not competent to offer a diagnosis of hearing loss that meets VA’s definition. Indeed, such a diagnosis requires the administration and interpretation of audiological test results. As such is a complex medical question, the Veteran is not competent to offer a diagnosis of hearing loss. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, the Veteran does not have bilateral hearing loss for VA purposes prior to or during the pendency of his claim. 38 C.F.R. § 3.385. In view of the foregoing, the preponderance of the evidence is against the grant of service connection, as there is no evidence of a current disability, and the benefit-of-the-doubt doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for tinnitus. In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran reported having tinnitus during the November 2012 VA audiological examination, which sufficiently establishes the presence of the currently claimed disability. Accordingly, the first element of service connection is established. With respect to in-service incurrence, the Veteran has provided various statements regarding the onset of his tinnitus. During the November 2012 VA examination, he reported that his tinnitus began 20 to 25 years prior to the examination, which is approximately 1985, more than 10 years after his discharge from service. However, during an October 2016 private audiologic evaluation, the Veteran reported that his constant tinnitus began during the late 1970s, which would be during his period of military service. See October 2016 statement from Dr. Land. Regardless of its onset, the Veteran has asserted that his asserted that his tinnitus is related to his military noise exposure. In this regard, the Board notes that the Veteran’s DD Form 214 and service personnel records (SPRs) reflect that his military occupational specialty included an aircraft attendant and serviceman. See DD Form 214; SPRs. Given this, the Veteran’s report of significant noise exposure during service is credible, as it appears to be consistent with the places, types, and circumstances of the duties described by the Veteran. See 38 U.S.C. § 1154 (a) (West 2012) (due consideration must be given to the places, types, and circumstances of a veteran’s service). Therefore, the Board finds the Veteran’s assertions regarding his in-service noise exposure are considered competent and credible lay evidence of such. Despite the Veteran’s conflicting statements regarding the onset of his tinnitus, at a minimum, his lay assertions raise a reasonable doubt as to whether his tinnitus began during service, as he is competent to report the events that occurred during service. Therefore, after resolving reasonable doubt in the Veteran’s favor, the Board finds that his assertions regarding the onset of his tinnitus during service are also considered competent and credible lay evidence of such. Turning to the question of whether there is a nexus, or link, between the current disability and service, the Board finds notes that the evidentiary record contains conflicting medical opinions. The November 2012 VA examiner opined that the Veteran’s tinnitus is less likely than not caused by or a result of his military noise exposure based on the lack of complaints or reports of tinnitus during service and the fact that the Veteran’s hearing was normal during service and during the current examination. By contrast, however, the October 2016 private audiologist, Dr. Land, opined that the Veteran’s tinnitus is more likely than not the result of his exposure to excessive noise during service. In this regard, Dr. Land noted that the Veteran’s exposure to loud noise during service is consistent with the development of tinnitus and is independent of his hearing loss. He also stated that tinnitus is documented to develop within 15 years of noise exposure, whereas the Veteran’s tinnitus occurred within five years of his discharge from service. In this regard, the Board finds probative that Dr. Land’s rationale supports a finding of a nexus to service even when taking into consideration the Veteran’s varying reports regarding the onset of his tinnitus, as he reported that his tinnitus began no more than 10 years after service. Both opinions are considered competent, credible, and probative evidence regarding the likely etiology of the Veteran’s tinnitus. Indeed, both clinicians provided a complete rationale in support of their opinion and each rationale is based on all relevant facts obtained from examination and interview of the Veteran, as well as their medical expertise. Therefore, neither opinion is considered more probative than the other and, as a result, the medical opinions are in relative equipoise. Accordingly, the evidence of record supports the grant of service connection for tinnitus and the Veteran’s claim may be granted. 3. Entitlement to service connection for fibromyalgia. 4. Entitlement to service connection for myofascial pain syndrome. The Veteran has sought to establish service connection for fibromyalgia and myofascial pain syndrome as directly related to service; however, the evidence submitted in support of his claims suggests that his fibromyalgia may be related (to include secondary) to his service-connected PTSD. See e.g., June 2010 private treatment record; June 2010 statement Dr. Kulafofski; December 2010 statement from Dr. Williams. Therefore, the question before the Board is whether there is a link between the Veteran’s current diagnosis of fibromyalgia and his military service, to include his service-connected PTSD. The Veteran was afforded a VA Fibromyalgia examination in October 2016, during which the examiner noted the Veteran’s report of pain affecting various systems and joints in his body, as well as his report that he notices his pain more in times of stress. After reviewing the record and examining the Veteran, the VA examiner opined that the Veteran’s fibromyalgia is not likely proximately due to or a result of his PTSD, as he noted that PTSD can co-exist with fibromyalgia but does not directly cause fibromyalgia. The examiner also opined that the Veteran’s fibromyalgia is not aggravated or permanently worsened by PTSD, as he noted the Veteran is currently taking Advil for his fibromyalgia and the condition has not changed. The October 2016 VA opinion is considered competent and credible evidence regarding whether the Veteran’s fibromyalgia is caused or aggravated by his service-connected PTSD. Indeed, the examiner provided a complete rationale in support of his opinion and there is no opposing medical opinion of record. However, the evidentiary record contains a medical opinion that relates the Veteran’s fibromyalgia directly to his military service. In June 2010, the Veteran’s private physician, Dr. Kulafofski, noted that he has cared for the Veteran’s musculoskeletal pain for more than 10 years and noted his report of experiencing many traumatic events during service. After noting the Veteran’s various symptoms, Dr. Kulafofski stated that his symptoms are consistent with myofascial pain syndrome, as well as fibromyalgia. Dr. Kulafofski also stated that the Veteran has symptoms of posttraumatic fibromyalgia as well as chronic myositis (or myofascial pain syndrome) which, in his experience, overlap. He stated that the Veteran’s autonomic nervous system dysfunction may be the cause of his fibromyalgia and, in this regard, noted that experts agree that cumulative lifetime stress has been associated with a number of physiologic changes in the brain and body that reflect dysregulated autonomic activity which leads to an increase in nervous system hyperactivity and sympathetically maintained pain. Dr. Kulafofski stated that, in other words, the traumatic and stressful events that the Veteran experienced during service most likely altered the function of his autonomic nervous system and, thus, is the primary source of his pain. Dr. Kulafofski then detailed various studies that discuss the correlation between PTSD and fibromyalgia. See June 2010 statement Dr. Kulafofski. The June 2010 statement from Dr. Kulafofski is considered competent and probative evidence that relates the Veteran’s current fibromyalgia to the traumatic and stressful events that occurred during service and resulted in his diagnosis of PTSD. The Board finds probative that there is no medical evidence or opinion of record that casts doubt on the findings noted in the June 2010 statement, including the October 2016 VA opinion which only addressed the relationship between fibromyalgia and PTSD, as opposed to the direct relationship between fibromyalgia and the events that occurred during service. Therefore, Dr. Kulafofski’s opinion is also considered credible. Given the foregoing, the Board finds that Dr. Kulafofski’s opinion raises a reasonable doubt as to whether the Veteran’s fibromyalgia is related to his military service and, as such doubt is resolved in favor of the Veteran, the Board finds service connection is warranted. As a final matter, the Board notes the Veteran has sought to establish service connection for fibromyalgia and myofascial pain syndrome as separate disabilities. However, the preponderance of the evidence shows that these conditions are manifested by symptoms that overlap and represent the same disability picture despite the separate diagnoses. See e.g., June 2010 statement Dr. Kulafofski; October 2016 Fibromyalgia VA examination. Therefore, given the foregoing, the Board finds service connection is warranted for fibromyalgia and myofascial pain syndrome as a single disability. 5. Entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) The Veteran is seeking an increased rating for service-connected PTSD, which is assigned a 50 percent rating under 38 C.F.R. § 4.130, DC 9411 and the General Rating Formula for Mental Disorders. After review of the lay and medical evidence of record, the Board finds the Veteran’s mood disorder warrants a 70 percent rating, but no higher, throughout the appeal period, i.e., from January 31, 2014, the date of receipt of the increased rating claim. Indeed, the preponderance of the evidence reflects that the Veteran has consistently experienced serious symptoms throughout the appeal period which have resulted in deficiencies in most areas of his life, including social relations, judgement, thinking, and mood. The evidence shows the Veteran’s symptoms have included depressed mood, disturbances in motivation and mood, irritability, chronic sleep impairment, mild memory loss, deficiencies in concentration, difficulty establishing and maintaining effective relationships, and suicidal ideation. While the Veteran’s mood is consistently described as depressed, the evidence also shows he has endorsed experiencing irritability, self-isolative preferences, mood swings, and crying spells, as well as difficulty with concentration, attention, and short-term memory, lack of motivation, and less interest in once preferred activities. See July 2014 VA PTSD examination. As a result of his deficiencies in his concentration and motivation, the Veteran has reported that he is only able to work one to two days. Likewise, as a result the variations in his mood and isolative preferences, the Veteran has reported marital and familial duress, such as relational strain in his long-standing relationship with his girlfriend who he describes as a roommate and limited contact with three of his children and seven grandchildren. See e.g., January 2014 VA treatment record; July 2014 VA PTSD examination. The Board notes that the Veteran’s thought process has generally been described as logical and goal-directed and he has also generally denied having delusions, paranoia, and hallucinations. However, the Veteran has reported having chronic suicidal thoughts with a plan that involves driving off on a motor bike. See January 2014 VA treatment record. The Board acknowledges the Veteran reported that he would not be able to go through with this suicide plan because he does not want to be in a wheelchair and that he has denied having any current suicidal or homicidal ideation; however, the chronicity of the Veteran’s suicidal thoughts are more probative than the fact that they are passive or dormant in nature and, most importantly, are indicative of a serious impairment in thinking. In this regard, the Board also notes that the Veteran’s judgement and insight are also described as no more than fair during the appeal period. See e.g., January 2014 VA treatment record; July 2014 VA PTSD examination. In evaluating this claim, the Board notes that the Veteran has generally been described as well-groomed, alert and oriented, with normal speech. The Board also acknowledges that the Veteran has not manifested many of the symptoms specifically contemplated by the 70 percent rating under the General Rating Formula, including obsessional rituals, spatial disorientation, or neglect in personal appearance or hygiene. However, the evidence described above shows that his overall disability picture has been manifested by serious symptoms which, while varied in frequency, have been described as chronic and result in deficiencies in many areas of his life, including social relations, judgement, thinking, and mood. Therefore, after resolving all reasonable doubt in favor of the Veteran, the Board finds that a 70 percent rating is warranted throughout the appeal period. However, a rating higher than 70 percent is not warranted at any time during the appeal period, as the Veteran’s symptoms are not shown to have resulted in total occupational and social impairment. Indeed, while the Veteran’s symptoms have resulted in deficiencies in many areas, the Veteran has maintained relationships with family members and retained his ability to interact with others, albeit on a limited basis. In this regard, the Veteran reports going to AA meetings regularly and he has continued to operate his own business, although his ability to work is limited due to his physical and mental disabilities. See July 2014 VA PTSD examination. His ability to perform activities of daily living has also remained intact. As there is no evidence or indication of a gross or total impairment in overall functioning, the Board finds a higher, 100 percent rating is not warranted at any point in this case. As noted, in making this determination, all reasonable doubt has been resolved in favor of the Veteran. REASONS FOR REMAND 1. Entitlement to service connection for sinusitis is remanded. In October 2016, a VA examiner opined that the Veteran’s current sinusitis was not likely incurred or caused by the various respiratory symptoms he experienced during service. The VA examiner based his opinion on the lack of evidence showing a diagnosis of sinusitis during service or for many years thereafter. However, the rationale provided does not explain why there is no etiologic link between the current diagnosis and the respiratory symptoms manifested in service, particularly given the Veteran’s competent reports of continued respiratory problems after service which eventually resulted in a diagnosis of sinusitis, as well as the other medical evidence of record that indicates his respiratory and sinus problems began during his period of service. See e.g., December 2010 statement from Dr. Weprin. The evidence of record also suggests that the Veteran’s sinusitis may be increased or aggravated by his PTSD, which is not addressed by the VA opinion. See February 2010 treatment record from Dr. Cohen. Given the deficiencies of the October 2016 VA opinion noted above, the Board finds a remand is needed to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Return the claims file to the October 2016 VA examiner for an addendum opinion regarding the Veteran’s sinusitis. If the October 2016 VA examiner is unavailable, the opinion should be rendered by another appropriate individual. After reviewing the record, the examiner should provide an opinion regarding the following: (a) Is it at least as likely as not (a probability of 50 percent or more) that the Veteran’s sinusitis was incurred during service or is otherwise caused by or related to the various respiratory symptoms he manifested during and continuously after service? (b) Is it at least as likely as not (a probability of 50 percent or more) that the Veteran’s sinusitis is aggravated by his service-connected PTSD, to include his stress and anxiety? See February 2010 treatment record from Dr. Cohen. (Continued on the next page)   A rationale must be provided for each opinion offered. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel