Citation Nr: 18158503 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-53 291A DATE: December 18, 2018 ORDER An effective date prior to January 4, 2016, for the award of service connection for posttraumatic stress disorder (PTSD), is denied. An effective date prior to January 4, 2016, for the award of service connection for lumbosacral strain is denied. Service connection for bilateral hearing loss is denied. REMANDED Service connection for a right knee disorder is remanded. Service connection for a left knee disorder is remanded. Service connection for a feet disorder is remanded. Service connection for sleep apnea is remanded. Service connection for a vestibular disorder is remanded. An effective date prior to January 4, 2016, for the award of service connection for tinnitus, is remanded. FINDINGS OF FACT 1. The Veteran’s claim of service connection for PTSD and a low back disorder were received on January 4, 2016. 2. There are no prior or unadjudicated claims of service connection for PTSD and a low back disorder prior to January 4, 2016. 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 hearing loss disability by VA standards in either ear. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 4, 2016, for an award of service connection for PTSD, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than January 4, 2016, for an award of service connection for a low back disorder, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for service connection for hearing loss have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2008 to September 2008 and October 2010 to November 2011. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Although the Board is remanding claims for additional development, remand is not necessary for the two issues adjudicated below, as there is no reasonable possibility that further assistance would substantiate the claims. See 38 C.F.R. § 3.159(d). Effective Dates The effective date of an award is the date after separation from service or date entitlement arose, whichever is later, for claims filed within one year of separation; or the date the claim was received by VA or the date entitlement arose, whichever is later, for claims filed more than one year after separation from service. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155. Although VA now requires claims to be filed on the proper standardized form, which applies to claims filed on or after March 24, 2015, such as the present claims. See 38 C.F.R. § 3.155. The Veteran filed his claims of service connection for PTSD and a low back disorder on January 4, 2016. There are no claims filed prior to that date, either formal or informal. In the June 2016 rating decision, the Regional Office (RO) granted service connection for PTSD and the low back disorder, with an effective date of January 4, 2016. The Veteran through his representative submitted an August 2016 notice of disagreement (NOD) followed by a November 2016 substantive appeal. In the substantive appeal, his representative stated “an earlier effective date of 16 Nov 2011 & 23 NOV 2016 respectively is warranted. C.U.E. Informal claim statutes were still in effect in 2011. Had the error not been made, the outcome would have been manifestly different.” To the extent the representative alleges clear and unmistakable evidence (CUE), the Board finds that issue is moot. The Veteran’s representative alleged CUE with the June 2016 rating decision on appeal. That rating decision granted service connection and assigned effective dates for the PTSD and low back disabilities, effective from January 4, 2016. He timely appealed that determination. As that appeal remains pending, it is nonfinal and nonbinding. Hence, it cannot be reversed or revised via a CUE motion, and the Board can take no further action on the CUE assertions at this time. See 38 C.F.R. § 3.105; Link v. West, 12 Vet. App. 39, 45 (1998) (where a rating decision is rendered nonfinal by the appellant’s timely appeal to the Board, a claim of CUE does not exist, as a matter of law, as to that RO decision.). The generalized assertion of CUE is, therefore, dismissed. See, e.g., Simmons v. Principi, 17 Vet. App. 104, 111-15 (2003). The Board notes that the Board’s present de novo review of the appeal is more favorable to the Veteran than the CUE standard. To the extent the Veteran’s representative generally asserts an effective prior to January 4, 2016 is warranted for the award of service connection for PTSD and a low back disorder, the claims are denied. There is no evidence supporting a claim prior to January 4, 2016, either formal or informal. The Board notes the Veteran had received treatment following service for his service-connected PTSD and low back disorders, including prior to January 2016. However, such treatment is not an indication of an intent to apply for benefits. See 38 C.F.R. § 3.155; Brokowski, 23 Vet. App. at 84. Moreover, even though treatment for psychiatric symptoms and the low back were shown in medical records at an earlier time, the mere presence of medical evidence does not establish an intent to seek service connection. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (holding that the mere receipt of medical records could not be construed as an informal claim); see also Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006) (“[W]here there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised.”). As a result, the preponderance of the evidence is against the claims. Thus, the benefit-of-the doubt doctrine does not apply, and earlier effective dates prior to January 4, 2016, for the award of service connection for PTSD and the low back disorder, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection The Veteran contends he has hearing loss related to combat and numerous blasts he was exposed to during his service in Afghanistan. His service treatment records contain no audiological examination supporting a hearing loss disability by VA standards. However, as noted, he was exposed to hazardous noise, including IED blasts, weapons fire, combat noise and heavy equipment. His DD 214 reflects his military occupational specialty was combat engineer. The Veteran’s report of noise exposure in service is credible. Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, where post-service audiometric findings indicate that there is a hearing loss disability, and where there is a sound basis upon which to attribute the post-service findings to the in-service injury (as opposed to incurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 157-59 (1993). For the purposes of the 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, or 4000 Hertz is 40 decibels or greater; or when the 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 using the Maryland CNC Test are less than 94 percent. 38 C.F.R. §3.385. " The relevant question at issue is whether the Veteran has a current hearing disability, as defined by 38 C.F.R. § 3.385, to meet the required criteria for service connection. After reviewing the claim file, the Board finds no competent evidence of hearing loss in either ear for VA purposes at any time during the appeals period. The Veteran was afforded a VA examination in April 2016; a hearing loss disability for VA purposes was not found by the examiner. The examiner reported that the left ear had 98 percent discrimination score; the right ear had a 96 percent discrimination score. None of the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz were 40 decibels or greater. Rather, the auditory thresholds were less than 26 decibels in each of the five relevant frequencies. In a November 2016 statement, the Veteran indicated he continues to suffer from hearing loss and is told by his friends and family that he listens to the television and radio too loud. He stated he often misses what his spouse says to him and conversations at work. The Veteran is competent to describe impaired hearing, as this is within the realm of his personal experience. 38 C.F.R. § 3.159. However, determining whether a hearing loss disability, as defined by 38 C.F.R. § 3.385, exists and whether such hearing loss was caused by military service, are not simple determinations that a layperson is able to make. A diagnosis of hearing loss is based on measurements of specific auditory thresholds and speech discrimination scores achieved through audiologic testing; a determination as to the etiology of such findings also requires medical expertise and training. The Veteran has not established that he has any advance medical knowledge, training, or expertise in the field of audiology to render such a diagnosis and/or opinion. Given the lack of evidence showing that the Veteran has a hearing disability in either ear at present, as that term is defined in 38 C.F.R. § 3.385, service connection for hearing loss is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS FOR REMAND 1. Service connection for bilateral knee and feet disorders. The Veteran contends that he has bilateral knee disorders and a disorder of his feet related to service. Alternatively, he asserts the disorder are related to a service-connected disability, to include the low back disability. The Veteran’s service treatment records show significant left knee complaints and treatment. Shortly prior to the Veteran’s second period of active service, a January 2010 service treatment record indicated reports of significant left knee pain, moderate weakness and instability. A later January 2010 record noted he injured his left knee while training in the weight room. With regard to his feet, a service treatment record from August 2008 noted soft tissue foot pain. Following service, a February 2013 medical record indicated the Veteran suffers from chronic knee pain. The physician concluded the Veteran’s disorders are related to his active service; however, no further rationale is provided. Based on the in-service complaints, as well as the February 2013 medical record, the Board finds the Veteran must be afforded a VA examination to determine the nature and etiology of any current bilateral knee and/or feet disorder(s). McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Service connection for sleep apnea. The Veteran contends that he has sleep apnea which was caused or aggravated by his service-connected PTSD. Alternatively, he asserts his sleep apnea is directly related to service. The Veteran submitted medical literature supporting a link between PTSD and sleep apnea. Additionally, he submitted a November 2016 statement which indicated he has received treatment for insomnia since his return from Afghanistan and he wakes up gasping for air and unable to breathe. He reported he has tried a CPAP machine which improved his symptoms. Therefore, the Board finds the Veteran must be afforded a VA examination to determine the nature and etiology of any diagnosed sleep apnea. McLendon at 79, 81 (2006). 3. Service connection for a vestibular disorder. The Veteran contends that he currently suffers from a vestibular disorder related to service, including from exposure to an improvised explosive device (IED). He stated in the November 2016 correspondence that at times he loses his balance and feels as if the room is tipping over and he may fall. An April 2011 service treatment record indicated the Veteran reported an IED blew up five meters from his vehicle and he experiences headaches and occasional dizziness since the incident. Similarly, an October 2011 service treatment record indicated he was exposed to numerous blasts during his second service period, including the close IED five meters away. He reported symptoms of headaches and occasional dizziness thereafter. Due to the service treatment records related to an IED blast, as well as the Veteran’s reported dizziness symptoms, the Board finds he must be afforded a VA examination to determine the nature and etiology of any diagnosed vestibular disorder. McLendon at 79, 81 (2006). 4. An effective date prior to January 4, 2016, for the award of service connection for tinnitus. The Veteran’s claim of service connection for tinnitus was granted in the June 2016 rating decision and an effective date of January 24, 2016 was assigned. The Veteran submitted an August 2016 NOD challenging the effective date of the disability rating. When an NOD is submitted in response to a rating decision, a statement of the case (SOC) is necessary. Thus, the Board will remand the issue for an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Prepare an SOC concerning the issue of an effective earlier than January 4, 2016, for the award of service connection for tinnitus. This issue should only be returned to the Board if a timely substantive appeal is filed. 2. Schedule the Veteran for a VA examination with an appropriate medical profession to determine the nature and etiology of any bilateral knee or feet disorder(s). All necessary tests should be conducted. A rationale should be provided for the opinions provided. (a) The examiner must identify any current right and left knee, and bilateral feet disorders. (b) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the identified disorders(s) had their onset during, or are otherwise causally related to, service, to include his service in Afghanistan from 2010 to 2011. (c) If not, the examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the identified disorder(s) were caused or aggravated by the Veteran’s low back disability. (d) With regard to the left knee disorder, the examiner should explain whether the disorder clearly and unmistakably pre-existed his second period of service. If so, the examiner should opine as to whether the disorder clearly and unmistakably was not aggravated during service, to include the Veteran’s service in Afghanistan from 2010 to 2011. The term “aggravation” means an increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. 3. Schedule the Veteran for a VA examination with an appropriate medical profession to determine the nature and etiology of any sleep apnea. All necessary tests should be conducted. A rationale should be provided for the opinions provided. (a) The examiner must identify if sleep apnea is diagnosed. (b) The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea was caused or aggravated by the Veteran’s PTSD. (c) If not, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea had its onset during, or is otherwise causally related to, service. 4. Schedule the Veteran for a VA examination with an appropriate medical profession to determine the nature and etiology of any vestibular disorder. All necessary tests should be conducted. A rationale should be provided for the opinions provided. The examiner must identify any vestibular disorder. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the vestibular disorder had its onset during, or is otherwise causally related to, service, to include his close proximity to an IED blast. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel