Citation Nr: 18158688 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-62 483 DATE: December 18, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an increased initial evaluation of traumatic brain injury with behavioral disturbances, currently evaluated as 70 percent disabling, is denied. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF FACT 1. The Veteran preponderance of the evidence weighs in favor of a finding that the Veteran does not have a hearing loss disability as described in 38 C.F.R. § 3.385. 2. The Veteran’s TBI symptomatology does not satisfy the criteria for a total impairment in any facet, when considered apart from the symptoms that the Veteran is already compensated for in connection with his service-connected PTSD, tonic-clonic seizures, right and left hip femoral neck fractures, tinnitus, erectile dysfunction, and migraine headaches. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. 2. The criteria for entitlement to an increased initial evaluation in excess of 70 percent disabling for traumatic brain injury with behavioral disturbances have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code (Code) 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2005 to July 2006. The Board of Veterans Appeals (Board) notes that the issues of entitlement to service connection for tinnitus and tonic-clonic seizures and to an increased evaluation of posttraumatic stress disorder (PTSD) were previously on appeal, but each of those issues was granted in full by way of rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in September and October 2016. Thus, those three issues are no longer on appeal, and they are thus not addressed in this decision. 1. Entitlement to service connection for bilateral hearing loss 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—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For the purposes of applying the laws administered by the Department of Veterans Affairs (VA), impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. In this case, the Board finds that the most pertinent evidence in the claims file consists of the Veteran’s statements and the reports from an August 2015 VA traumatic brain injury (TBI) examination and a June 2016 VA hearing loss and tinnitus examination. The Veteran claims entitlement to service connection for hearing loss. However, the Board notes at the outset that, in order to provide competent evidence, the establishment of the existence of hearing loss for purposes of a claim for service connection must be made by an individual that has certain qualifications, including a certain level of medical/audiological education, training, and/or experience, and the ability to perform audiological testing or at least to interpret the results thereof. The Veteran has not shown that he possesses any such qualifications. Therefore, for purposes of this claim, he is not competent to opine on whether he has an impaired hearing or hearing loss disability, as described in 38 C.F.R. § 3.385. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As indicated above, the Veteran was afforded a VA TBI examination in August 2015. The examiner opined that the Veteran had subjective symptoms and/or mental, physical or neurological conditions or residuals attributable to a TBI including hearing loss and/or tinnitus. However, the examiner did not specify which of those conditions the Veteran had, and the examiner did not provide any audiometric testing results in that report. Also of note in that regard is the fact that the Veteran was subsequently granted service connection for tinnitus. The Veteran was afforded another VA hearing loss and tinnitus examination in June 2016. After a review of the Veteran’s claims file and an in-person examination of the Veteran, the June 2016 examiner indicated that the Veteran’s auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz was not 40 decibels or greater, that his auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz were not 26 decibels or greater, and that his speech recognition scores using the Maryland CNC Test were not less than 94 percent. See 38 C.F.R. § 3.385. There is no competent evidence to the contrary in the Veteran’ claims file. Considering the evidence of record, the Board finds that the preponderance of the evidence weighs in favor of finding that the Veteran does not have a current impaired hearing or hearing loss disability. The only VA examination report to specify whether the Veteran has hearing loss, and the only examination report that includes audiometric testing results, indicates that the Veteran has no such disability. As stated above, the Veteran is not competent to establish the existence of any such disability. Therefore, the Board finds that the probative value of the June 2016 VA examination report outweighs the combined probative value of the Veteran’s statements and the August 2015 examiner’s opinion that the Veteran has hearing loss and/or tinnitus (at least to the extent that the examiner was indicating that the Veteran had hearing loss). Accordingly, the Veteran’s claim of entitlement to service connection for hearing loss is denied. 2. Entitlement to an increased initial evaluation of traumatic brain injury with behavioral disturbances, currently evaluated as 70 percent disabling Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. As indicated above, the Veteran is requesting a higher rating for his service-connected residuals of TBI with behavioral disturbances, which is currently rated as 70 percent disabling under 38 C.F.R. § 4.124a, Code 8045. Under Code 8045, there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Id. The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” A 100 percent evaluation is assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. Note (1) to Code 8045 provides: there may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Id. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Considering the above, to receive a higher rating, the evidence must show a “total” level of impairment for one or more TBI facets (memory, judgment, social interaction, orientation, motor activity, visual/spatial orientation, subjective symptoms, communication, or consciousness). A review of the pertinent evidence of record, as summarized below, does not indicate that any VA TBI examiners have assigned this level of severity to any symptoms that are related to the Veteran’s TBI and not separately evaluated, and it also does not indicate that there is any other at-least-equally probative evidence indicating otherwise. The Board finds that the most pertinent evidence in the claims file relating to this issue consists of the Veteran’s statements, an August 2015 TBI examination and a June 2016 TBI examination. The Board notes, in this regard, that the Veteran’s VA treatment records are not included in this list of the most pertinent evidence because the VA treatment records do not contain any indication of any clear, objective delineation between the Veteran’s TBI-related symptoms, his PTSD-related symptoms, and/or the symptoms or effects of his other, non-service connected mental and physical conditions. Thus, the Board finds that the Veteran’s statements and the two aforementioned VA examination reports are the most pertinent and probative evidence on the issue of the evaluation of the Veteran’s service-connected TBI residuals and behavioral disturbances. The Veteran claims that he is entitled to an increased evaluation of his TBI residuals because he suffers from TBI-related motor dysfunction, sensory dysfunction, hearing loss, tinnitus, seizures, impairment of gait, coordination, and balance, impairment of speech, headaches, sexual dysfunction, mental disorders, and memory loss. However, the Board notes that although the Veteran is competent to describe symptoms that he experiences, he is not competent to opine on the attribution of those symptoms to his TBI residuals, since, in order to be competent, such opinions must be made by an individual that has certain qualifications, including a certain level of medical education, training, and/or experience, which the Veteran has not shown that he possesses. See Jandreau, supra. For that reason, the Board will consider the Veteran’s claims that he suffers from such symptoms, but the Board must look elsewhere for competent evidence as to which of the Veteran’s claimed symptoms are related to his TBI. See Addendum to Veteran’s Supplemental Claim for Compensation received in May 2016. As indicated above, the Veteran was afforded a VA TBI examination in August 2015, and the examiner stated that the Veteran had a complaint of mild memory loss, but no impairment of his judgment, social interaction, orientation, motor activity, visual spatial orientation, communication and consciousness and no neurobehavioral effects or subjective symptoms. The examiner did state, however, that the Veteran had subjective symptoms and/or mental, physical or neurological conditions or residuals attributable to his TBI including hearing loss and/or tinnitus, seizures, and a mental disorder. The Veteran was afforded another VA TBI examination in June 2016, and the examiner that performed that examination indicated in the medical history section of the report of that examination that the Veteran had poor use of fine motor skills, poor memory and 2-3 headaches/migraines per week. Later in the examination report, when assessing and describing the Veteran’s cognitive impairment and other residuals of his TBI, the examiner indicated that the Veteran: complained of mild memory loss; had moderately severely impaired judgment; had inappropriate social interaction most or all of the time; was consistently disoriented to two or more of the four aspects of orientation; had moderately decreased motor activity due to apraxia; had moderately severely impaired spatial orientation; had three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family or other close relationships; had one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; was able to communicate by and comprehend spoken and written language; and had no impairment of consciousness. When asked whether the Veteran had any subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI, the examiner indicated that the Veteran had hearing loss and/or tinnitus, seizures, erectile dysfunction, headaches (including migraine headaches), and a mental disorder. When asked about the functional impairment caused by the Veteran’s residual conditions attributable to his TBI, the examiner indicated that the Veteran had chronic pain and severe shoulder dislocation and that he stated that all of his body parts were constantly in pain. Thus, in summary, the examiner opined that the Veteran’s most significant TBI-related impairments were: a relatively severe impairment of social interaction, with a given example of the Veteran taking his girlfriend’s car and not returning it to her by the time she needed it; consistent disorientation to two or more of the four aspects of orientation, with a given example of the Veteran forgetting appointments and medications and taking longer than usual to answer the examiner’s questions; moderately decreased motor activity, manifested by the Veteran limping, moving around in a circle and shaking his legs; and moderately severe impairment of visual spatial orientation, manifested by a difficulty remembering directions and getting lost. The examiner’s characterization of the Veteran’s subjective symptoms was also quite severe, but the examiner did not provide any examples of the symptoms contemplated. After review of the above-mentioned pertinent evidence and all other evidence in the Veteran’s claims file, the Board finds that the Veteran is not entitled to an increased evaluation of his TBI with behavioral disturbances. First, the August 2015 VA examiner’s examination report clearly shows that the Veteran’s symptoms were mild, aside from his hearing loss and/or tinnitus, seizures and mental disorder. The June 2016 examiner also did not note any symptoms causing a total level of impairment for any of the 10 facets discussed in Code 8045, other than the Veteran’s aforementioned impairment of his memory sense of direction, and his limping, leg shaking and musculoskeletal pain. Second, the Veteran has been found not to have impaired hearing, as discussed above, and he has been granted service connection, and thus compensated, for erectile dysfunction, tinnitus, seizures, a mental disorder (which is evaluated as PTSD), and his residuals of bilateral hip fractures. Therefore, the Board finds that the Veteran is already compensated separately for many of the symptoms that he claimed, and the more severe symptoms mentioned by the August 2015 and June 2016 examiners, including but not limited to the limp and leg pain (compensated as residuals of right and left hip femoral fractures), his forgetfulness, and his impaired sense of direction (both compensated as PTSD). Granting the Veteran an increase for his TBI based on those symptoms would be pyramiding, and is thus inappropriate in this instance. 38 C.F.R. § 4.14. The August 2015 and June 2016 VA examinations reflect that, those symptoms aside, the Veteran’s other TBI symptoms that he is not already separately compensated for do not cause total impairment of any of the 10 facets of TBI related to cognitive impairment and subjective symptoms. Accordingly, the Veteran is not entitled to an increased evaluation in excess of 70 percent for his residuals of TBI with mood disturbances, and his claim therefor is thus denied. REASONS FOR REMAND 1. Entitlement to service connection for left and right shoulder disabilities are remanded. The Veteran claims a shoulder injury when he had a seizure and fell in 2010 or 2011. He claims entitlement to service connection for what he claims are resultant shoulder injuries because, according to him, the seizure was caused by his service-connected seizure disorder and/or a reaction that he had to Tramadol, a medication that he takes for his one of his service-connected disabilities (namely, for his service-connected hip disabilities). See, e.g., VA Form 21-4138, Statement in Support of Claim received in August 2016. VA has obtained VA medical treatment records indicating that the Veteran did in fact report having a seizure and falling in November 2011, and that he did in fact injure his shoulders during that fall. Given the Veteran’s statements and the aforementioned treatment records, the Board finds that this is a case in which a VA examination addressing the etiology of the claimed disorders is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left or right shoulder disabilities. The examiner must opine whether any such disability is at least as likely as not (a 50 percent or greater probability) etiologically related to an in-service injury or disease, or alternatively caused or aggravated by the service-connected seizure disorder or any medications prescribed to and taken by the Veteran for any of his service-connected conditions. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banks, Associate Counsel