Citation Nr: 18160075 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 16-62 963 DATE: December 21, 2018 ORDER Service connection for lung condition to include chronic cough with phlegm due to herbicide agent exposure is denied. Service connection for hypertension claimed as ischemic heart disease is granted. Entitlement to an initial rating in excess of 20 percent for right ear hearing loss rated as bilateral hearing loss is denied. Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The evidence of record does not show a current diagnosis of a lung condition due to herbicide agent exposure. 2. The evidence of record establishes that the Veteran had boots on the ground in the Republic of Vietnam repeatedly during his active service, and is therefore presumed to have been exposed to herbicide agents. 3. The preponderance of evidence supports that the Veteran’s hypertension claimed as ischemic heart disease is etiologically linked to his service. 4. Throughout the period on appeal, audiometric examination shows no greater than a level IV hearing loss for the right ear and no greater than a level V hearing loss for the left ear. 5. For the entire period on appeal, the Veteran’s PTSD has not been shown to be productive of occupational and social impairment with deficiencies in most areas; nor has it been productive of total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for lung condition, to include chronic cough with phlegm, due to herbicide agent exposure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307; 3.309. 2. The criteria for service connection for hypertension claimed as ischemic heart disease have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307; 3.309. 3. The criteria for an initial rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100, 4.86(b). 4. The criteria for an initial rating in excess of 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1968 to May 1969. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C § 1110; 38 C.F.R. § 3.303(a). “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)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Regarding service connection due to herbicide agent exposure, VA laws and regulations provide that if a veteran was exposed to certain herbicide agents during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). When a veteran claims service connection, he or she is not claiming service connection for a specific diagnosis but for his or her symptoms regardless of the diagnosis, and the claim encompasses the underlying condition regardless of diagnosis. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Lung condition, to include chronic cough with phlegm. The Veteran contends that his lung condition with chronic cough is due to exposure to Agent Orange. The Veteran competently and credibly reports daily coughing mostly in the early morning and at night productive of white phlegm. Lay evidence can be competent to establish a diagnosis when the layperson is competent to identify the medical condition. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds that the Veteran is competent to report a persistent or constantly recurring cough. The Veteran is not, however, competent to diagnose a lung condition. The Veteran provided no evidence of treatment for or a medical diagnosis of a lung condition. The Veteran has been provided an opportunity to submit records documenting both. The Veteran’s service treatment records are silent as to any respiratory complaints or treatment. The fields for lungs and chest were both marked normal during his exit exam. Similarly, the exit exam contains negative responses for throat trouble, chronic or frequent colds, shortness of breath, pain or pressure in the chest and chronic cough. In July 2014, a VA Physician examined the Veteran and completed a Disability Benefits Questionnaire (DBQ) for respiratory conditions. The DBQ indicates that the Veteran did not have and had never been diagnosed with a respiratory condition. His physical exam and x-rays on the date of the DBQ were normal. Therefore, the Board determines that the claim for a lung condition due to herbicide agent exposure must fail for lack of evidence of a current disability. The Board acknowledges that the Veteran seeks service connection for his respiratory symptoms under a presumptive theory of entitlement. However, there is no presumption available for the first element of service connection. Without a present disability, it would be fruitless to assess the Veteran’s lung condition under any of the theories of entitlement enumerated in 38 C.F.R. § 3.307 including exposure to certain herbicide agents. As there is no evidence of the first element, entitlement to service connection for a lung condition is not warranted. 2. Hypertension claimed as ischemic heart disease. In the instant case, the record does not reflect a diagnosis for ischemic heart disease. In support of his claim, the Veteran submitted a consultation report from Dr. P.Y. In September 2013, Dr. P.Y. opined that the Veteran did not have ischemic heart disease but suggested that the Veteran obtain a second opinion. No other opinion of record purports to diagnose the Veteran with ischemic heart disease. Pursuant to Clemons, the Board has considered whether the record suggests cardiovascular conditions other than ischemic heart disease. 23 Vet. App. 1, (2009). At a January 2017 C&P Exam, the Veteran endorsed a 20-year history of hypertension. The record reflects a current diagnosis of hypertension from April 2014. The Veteran contends that he has hypertension due to exposure to Agent Orange while stationed in Vietnam. The Veteran’s service in the Republic of Vietnam is evidenced by his receipt of awards such as the Vietnam Campaign Medal and Vietnam Service Medal. The Veteran’s military personnel records confirm sustained aerial flight in support of combat ground forces in the Republic of Vietnam from August to September 1968, and “boots on the ground” service as an ambulance driver at Cam Ranh Bay Air Base, Vietnam and from March to May 1969. In-service herbicide agent exposure is presumed where a veteran has qualifying service in Vietnam between January 9, 1962 and May 7, 1975 unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. As discussed above, 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision regarding herbicide agent exposure, and the list does not include hypertension. Thus, a connection between the Veteran’s hypertension and herbicide agent exposure cannot be presumed. However, service connection for hypertension is established on a direct basis. As mentioned, a current diagnosis for hypertension is established. The Veteran has presumed exposure to Agent Orange as an in-service incurrence for his hypertension. The National Academies of Sciences, Engineering and Medicine recently opined that there is sufficient evidence of an association between exposure to herbicide agents used during the Vietnam War and hypertension. See The National Academies of Sciences, Engineering, and Medicine, Committee Review the Health Effects in Vietnam Veterans Exposure to Herbicides (Eleventh Biennial Update) (2018), available at https://www.nap.edu/catalog/25137/veterans-and-agent-orange-update-11-2018. Hypertension was moved to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category. The research showed that there is enough epidemiologic evidence to conclude that there is a positive association between herbicide agent exposure and hypertension in Vietnam Veterans. Id. This new research demonstrates a causal relationship between the Veteran’s hypertension and exposure to an herbicide agent during service. As all three elements are established, service connection for hypertension is granted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). 1. Bilateral hearing loss Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned. 38 C.F.R. § 4.86. In this regard, and relevant here, when the puretone threshold is 30 decibles or less at 1000 Hertz, and 70 decibles or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In this case, the Veteran appealed an initial rating for bilateral hearing loss. In August 2014, the Veteran was provided a C&P examination. The Veteran described his hearing loss as resulting in difficulty understanding speech with particular trouble on the telephone. The results of the audiological test are as follows, with puretone thresholds recorded in decibels: HERTZ 1000 2000 3000 4000 RIGHT 25db 70db 65db 65db LEFT 25db 75db 80db 75db Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 98 percent in the right ear and 96 percent in the left ear. The average of the puretones between 1000-4000 Hertz was 56.25 for the right ear and 63.75 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of I for the right ear and II for the left. Such a degree of hearing loss warrants a noncompensable rating under Table VII. Under Table VIa, however, the Veteran received a numeric designation of IV for the right ear and V for the left, which warrants a 10 percent rating under Table VII. The Board notes that even with the application of Table VIa, the Veteran is entitled only to a 10 percent rating under Table VII. While the Board will not reduce the already assigned rating of 20 percent for this period, the evidence of record plainly does not warrant assignment of a higher rating. The Veteran submitted a September 2013 consultation report from Dr. P.Y. a diagnostic consultant and board-certified chiropractor in support of his claim for a higher initial rating for bilateral hearing loss. Dr. P.Y. opined that the Veteran had a 30 percent hearing loss in each ear based on the whisper test. However, there are no objective auditory findings to support this conclusion. The Board cannot afford any probative value to this opinion given its use of an unreliable speech discrimination test. There is no indication that the whisper test is sufficient to measure audiometric thresholds. Additionally, the rating criteria relies on different testing. Dr. P.Y. recommended that the Veteran seek a puretone test to verify his results. As shown above, the puretone test did not confirm Dr. P.Y.’s findings. Based on the above, the Board finds that the claim must be denied. The Board has considered the Veteran’s complaints regarding the impact of hearing loss on his daily life, but as noted above, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. The Veteran’s report of difficulty understanding speech with particular trouble on the telephone is acknowledged; however, this is reflective of the type of functional difficulty that would be expected to be caused by his recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss.). Accordingly, the examination of record is afforded great probative value in determining the Veteran’s level of hearing impairment. The most probative medical evidence as to the nature of the appellant’s hearing loss are the audiometric findings, and those discussed above reveal that the Veteran’s hearing loss does not warrant entitlement to an initial rating in excess of 20 percent. In reaching this conclusion, the Board has considered the applicability of the reasonable doubt doctrine; however, since the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. PTSD PTSD is evaluated under the general rating formula for mental disorders. See 38 C.F.R. § 4.130, DC 9411. Under this general rating formula, a 50 percent rating is warranted when the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. Id. Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships warrants a 70 percent rating. Id. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name warrants a 100 percent rating. Id. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) (also explaining that VA intended the General Rating Formula to provide a regulatory framework for placing veterans on the disability spectrum based upon their objectively observable symptoms). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact occupational and social impairment. Id at 118. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the frequency and severity of his current symptomatology that is observable to the senses. See Layno v Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Having reviewed all the evidence of record, the Board finds that it does not support a finding of occupational and social impairment with deficiencies in most areas such as family relations, work, school, mood, judgment and thinking, as contemplated by the criteria for a 70 percent rating. In September 2013, the Veteran was examined by a private psychologist, Dr. R.O. Among the symptoms noted by the doctor were low frustration tolerance, rage and aggressive impulses, sleep disturbances, nightmares, night terrors, hyper arousal, high dependence on alcohol, detachment, avoidance, and mistrust of others. It was also noted that the Veteran’s resistance to being directed by others required development of his own business. The Veteran reported that he had not been emotionally demonstrative to his wife or other family members and attributed his perpetual remoteness to his tour of duty in Vietnam. The Veteran also reported one incident of road rage several years ago where he was arrested for brandishing a weapon and served one year of probation. Dr. R.O. diagnosed the Veteran with PTSD with current symptoms of hypervigilance and hyper arousal. He determined that the Veteran’s avoidance of interactions with the general public, low frustration tolerance and his preference to remain psychologically remote from those within his home environment were symptoms of his PTSD. The Board finds this opinion to be of some probative value given the detailed account of the Veteran’s symptoms and service history. However, while the exam was thorough, the summary and conclusion dismissed the Veteran’s positive reports. The Veteran reported close relationships with his sons and some friendships. He also described working consistently for over 30 years following his military service. Dr. R.O. did note that the Veteran reported suicidal ideations with no gestures or attempts following his father’s death. However, the Veteran repeatedly denied experiencing suicidal ideations at any other time. Additionally, there is no indication of any obsessional rituals in the record. The Veteran underwent an initial evaluation for PTSD at the VA in July 2014. The VA Psychologist noted depressed mood, anxiety, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, hypervigilance, irritable behavior and excessive drinking. The Veteran again reported the road rage incident but stated that it was “years ago”. The Veteran informed the psychologist that he lived with his wife of 32 years. He described his relationship with his wife as fine and reported no problems in the relationship. He indicated that he had two sons from the marriage with whom he was close. He also reported having a few friendships. His typical activities included hunting and working around the house. The Veteran had recently retired from a 28-year career as an electrical contractor. He reported occasional arguments at work. The examiner diagnosed PTSD which he assessed as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. The Board finds this report to be highly probative given its consistency with other reports of record and well-reasoned rationale. Upon review of the evidence, the Board finds that Veteran’s PTSD has not been shown to be productive of occupational and social impairment with deficiencies in most areas; nor has it been productive of total social and occupational impairment. At the private and VA examinations the Veteran reported no problems with his wife of 32 years. He described his relationship with his two sons as good and close. Although he reported hypervigilance and avoidance of crowds and social gatherings, the evidence shows that he maintained friendships both during and after active service. In sum, although the Veteran exhibits some social impairment, he is not deficient in most or all areas. Additionally, although the Veteran reported that he had recently retired at the July 2014 examination the is no indication that this decision was due in any part to his service-connected PTSD. Moreover, prior to his retirement in June 2014, the Veteran had been able to maintain a full-time job as an electrical contractor for more than 28 years and as a union contractor prior to that. Although he described occasional arguments at work and a general aversion to authority figures, he reported being able to manage it by choosing a self-directed business. In sum, although the Veteran exhibits some occupational impairment, he is not deficient in most or all areas. As discussed above, the evidence does not show deficiencies in family relations or work sufficient to equate in severity, frequency or duration with a 70 percent rating. The Veteran’s particular symptoms which include problems with his mood, due to irritability, are more consistent with occupational and social impairment with reduced reliability and productivity contemplated by a 50 percent rating. The Board therefore finds that Veteran’s PTSD symptoms have not been shown to be productive of occupational and social impairment with deficiencies in most areas; nor has it been productive of total social and occupational impairment. Indeed, the VA examiner assessed the Veteran’s overall impairment as involving occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily. The Veteran’s own reports show sound judgment in that he recognized his need to work alone and avoid altercations with coworkers. While the private examiner found that the Veteran exhibited some deficiencies in judgment or thinking, specifically the singular, remote incident of road rage, these deficiencies are contemplated by the 50 percent rating. Thus, the Veteran has not demonstrated symptomatology equivalent to the level of severity required for a 70 percent rating. As such, the preponderance of evidence is against the claim and the appeal for an initial rating in excess of 50 percent for PTSD must be denied. 38 U.S.C. § 5107. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Sherman Associate Counsel