Citation Nr: 1807650 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-16 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for headaches. 3. Entitlement to an initial rating in excess of 10 percent for chronic thorax myofascial strain, status-post 9th right posterior rib fracture. 4. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol and substance dependence. REPRESENTATION Appellant represented by: Shana M. Dunn, Attorney ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to January 1983. This appeal is before the Board of Veterans' Appeals (Board) from August 2012 and September 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Board remanded the matters on appeal. FINDINGS OF FACT 1. The Veteran has current left ear hearing loss that is the result of in-service noise exposure. 2. The Veteran's headaches are etiologically related to service. 3. The Veteran's chronic thorax myofascial strain, status-post 9th right posterior rib fracture, approximates forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, and combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. 4. The Veteran's PTSD with alcohol and substance dependence is productive of occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to symptoms of commensurate nature and severity. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 2. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 3. The criteria for an initial rating in excess of 10 percent for chronic thorax myofascial strain, status-post 9th right posterior rib fracture, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2017). 4. The criteria for an initial rating in excess of 70 percent for PTSD with alcohol and substance dependence have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). I. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, as reflected in a June 2012 VA memorandum, the Veteran's service treatment records for his period of duty from July 1978 to January 1983 are unavailable. Where, as here, the claimant's service medical records have been destroyed or lost, the Board has a heightened duty to explain its findings and conclusions and to consider the benefit of the doubt. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). A. Left ear hearing loss The Veteran asserts that he has left ear hearing loss is the result of in-service noise exposure. His service personnel records reflect that he had enlisted in the avionics category of the Regular Navy Enlisted Occupational Specialty. VA examinations beginning in July 2012 reflect that the Veteran has a left ear hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. On July 2012 VA examination, the examiner opined that the Veteran's tinnitus is at least as likely as not a symptom associated with his hearing loss, as tinnitus is known to be a symptom associated with hearing loss. Based in part on the July 2012 VA examination, the agency of original jurisdiction (AOJ) granted service connection for tinnitus, stating the following: Your complete service treatment records are not available for review; however, your military records show that you enlisted in the avionics category of the Regular Navy Enlisted Occupational Specialty, which the service department has determined has a high probability of noise exposure. You also described your exposure to noise aboard your ship. Therefore, military noise exposure is conceded. A review of your VA treatment records shows complaints of tinnitus. You underwent a VA exam on July 2, 2012. You reported having periodic tinnitus since service. The examiner opined that your tinnitus is as likely as not a symptom associated with your hearing loss. Based on the Veteran's statements regarding his tinnitus since service, and considering his in-service noise exposure and the lack of any service treatment records, the AOJ granted service connection for tinnitus. VA obtained two additional opinions regarding the etiology of the Veteran's left ear hearing loss. In each instance, the examiner stated that he or she was unable to provide an opinion regarding the likelihood of the Veteran's left ear hearing loss being related to service without resorting to speculation. In March 2014, the examiner noted that the file did not include a separation audiologic examination, that the Veteran was released from active military service in 1982, and that the first documented left ear hearing loss was in July 2012; she stated that, in the absence of an exit audiologic evaluation, there was no way of knowing whether the Veteran's left ear hearing loss occurred during military service or sometime thereafter. The May 2016 examiner noted the same, and that the Veteran's enlistment audiogram was normal at all frequencies tested. The Board finds the evidence regarding whether the Veteran's left ear hearing loss was the result of in-service noise exposure to be in relative equipoise. Each VA examiner concluded that, given the absence of service records, they were unable to determine whether the Veteran's left ear hearing loss was related to service or not. Furthermore, VA has conceded in-service noise exposure and granted service-connection for tinnitus-which, according to the July 2012 VA examiner, is at least as likely as not a symptom associated with his hearing loss. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has current left ear hearing loss that is the result of in-service noise exposure. Accordingly, service connection for left ear hearing loss is warranted. B. Headaches VA treatment records beginning in August 2011 reflect that the Veteran first complained of a history of headaches in September 2011. He filed a claim for service connection for headaches in August 2011. As reflected in VA examination reports beginning in June 2012, the Veteran asserts that he has had headaches since his period of service, even though he did not seek treatment for such until September 2011. He has asserted that such headaches are the result of frequent exposure to jet engine exhaust during his service on an aircraft flight deck. Alternatively, he has asserted that such headaches were the result of in-service noise exposure, or are caused or aggravated by his service-connected disabilities of tinnitus and/or PTSD. Five VA opinions regarding the etiology of the Veteran's claimed headaches are of record, dated June 2012, September 2012, February 2014, June 2016, and August 2016. Such opinions have noted the Veteran's reports of headaches since service but that he had not sought treatment until September 2011, despite first establishing treatment with VA in July 2011. The opinions note that the Veteran has not endorsed migraine symptoms. They also repeatedly explain that while exhaust exposure and noise might instigate acute headaches, these factors would not result in a chronic headache condition. They discuss the literature supporting this conclusion at length, and address an article and fact sheet submitted by the Veteran suggesting otherwise. However, in June 2012, the VA examiner suggested that it was possible that, if the Veteran was credible, he might have "rebound headaches," which usually evolve in patients with an underlying headache predisposition for migraines or tension type headaches, who get into the habit of taking pain medications on a regular basis. The examiner stated that it was possible that daily exposure to high levels of noise and exhaust gases or other factors associated with military service could have triggered headaches during military service that might have started a cycle of daily pain medication use with the subsequent evolution into rebound headaches. The only opinion addressing whether the Veteran's PTSD caused or aggravated his headache condition, dated in August 2016, states that the examiner did not think that the Veteran's current headaches were aggravated by his service-connected tinnitus or PTSD given the conflicting assertions of the etiology of his headache condition, the lack of chronicity, and no prior history of headache until September 2011. However, the same opinion notes that the first documentation of headache was made in September 2011, and that it was felt by the examining physician at that time to be a tension headache with Veteran reporting being under more stress; there is no explanation as to how, if the Veteran's headache condition was caused or aggravated by stress, it would nonetheless be unlikely to be caused or aggravated by his service-connected PTSD with alcohol and substance dependence. See Allen, 7 Vet. App. at 448 (holding that "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated"); 38 C.F.R. § 3.310(b) ( "any increase in severity of a nonservice-connected disease or injury shall be service connected"). Furthermore, these VA opinions repeatedly conclude that it is impossible to link the Veteran's current headache complaints with events associated with his military service, to include his such as jet fuel exposure, tinnitus, and PTSD, without resorting to speculation, given the lack of supporting evidence. The opinions go on to state that, based solely on the Veteran's statements without any records supporting his headache onset dating back to military service, the theoretical scenarios of etiological relationship, noted above, could be used to support a positive decision regarding compensation, given the lack of records prior to 2011. Given the above, the Board finds the evidence to be in relative equipoise regarding whether the Veteran's headaches are related to service. While there is no indication of a headache condition in the record until September 2011, and the evidence of headaches beginning in service and existing to the present has consisted entirely of the Veteran's statements, the Board recognizes its heightened duty to consider the benefit of the doubt in this case, as the service treatment records are not available for review. Moreover, while VA has obtained five opinions, none is clearly against a finding of a link between the Veteran's headaches and service; the opinions conclude that such an option cannot be given without report to speculation. Such opinions have, furthermore, stipulated that, given the lack of documented evidence available, an etiological relationship to service based on a theory such as that of "rebound headaches" related to service, articulated by the June 2012 VA examiner, is plausible and could be used to support a positive decision. Also, as noted above, no opinion has adequately explained why the Veteran's headache condition could not be aggravated by his service-connected PTSD, given the recognition that the Veteran's headaches had been related to stress earlier in the record. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that his headaches are etiologically related to service. Accordingly, service connection for headaches is warranted. II. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). A. Chronic thorax myofascial strain, status-post 9th right posterior rib fracture The Veteran's chronic thorax myofascial strain, status-post 9th right posterior rib fracture, is rated under Diagnostic Code (DC) 5243-5237, and is thus rated under the criteria for lumbosacral or cervical strain. See 38 C.F.R. §§ 4.20, 4.27. His disability is therefore rated according to the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, the following evaluations are assignable with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: * 10 percent for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; * 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; * 40 percent for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; * 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; and * 100 percent for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Plate V, 38 C.F.R. § 4.71a. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Veteran complained of back pain on VA treatment in September 2011. He reported throbbing pain in his right upper back just below his scapula that had been present since he had slip and fall while on active duty about 1979. Examination of the upper back revealed no swelling, tenderness or boney deformity, and full active range of motion. The assessment was backache-exam normal. The Veteran was given VA examinations of his disability in June 2012 and February 2014. He reported intermittent to constant right upper posterior thorax pain, provoked with deep breathing, yard work, hammering, reaching with his right arm or other stretching physical exercises. Pain was treated with Ibuprofen or Tylenol, and sometimes with a heating pad to the right posterior upper thorax area. He reported pain flare-up in June 2012 on over-exertion with reaching the right arm. Lumbar spine range of motion was full or greater in all directions, with pain not occurring until full motion or greater, which was in the posterior thorax in the area of the prior right 9th rib fracture. There was no additional range of motion limitation or other additional functional loss on repetition. Muscle strength testing was full, and there was no radiculopathy or other neurological symptoms or abnormalities. It was noted that the Veteran was able to do all basic and instrumental activities of daily living independently, including chores and driving. On May 2016 VA examination, the Veteran continued to complain of right upper back pain with pain flare-ups during activity requiring physical exertion, particularly involving use of his right upper extremity. This included washing dishes, mowing the lawn, doing laundry, running, vacuuming, and prolonged driving with breaks every 45 minutes. On range of motion testing, forward flexion was to 80 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, and right and left lateral rotation to 30 degrees; pain was noted but did not result in additional functional loss. There was no evidence of pain with weight bearing, and there was tenderness to palpation over the right posterolateral side of back, over the ribcage. It was assessed that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare-ups. There was no guarding or muscle spasm of the back and no abnormal gait or spinal contour. Muscle strength and neurological examination was again normal with no radiculopathy or neurological symptoms. Considering the evidence as a whole, an initial rating greater than 10 percent for the Veteran's chronic thorax myofascial strain is not warranted. Even considering pain and other such functional impairment, including with repetition, range of thoracolumbar spine motion has been limited to, at most, 80 degrees of flexion and 200 degrees combined range of motion. There has not been muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, or any other symptomatology approximating these criteria. While the Veteran has reported pain on use or flare-ups with physical exertion, including with exercise and performing ordinary activities, as described above the Board finds that the criteria for a 10 percent rating under DC 5237 reasonably contemplates such functional impairment and level of disability; such criteria explicitly contemplate disability of the level of flexion limited to anywhere above 60 degrees, as well as muscle spasm, guarding, or localized tenderness and vertebral body fracture with loss of 50 percent or more of the height. Moreover, the May 2016 VA examiner specifically assessed that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare-ups beyond that noted on examination. Finally, neither the treatment records nor any examination report reflects any period of acute signs and symptoms due to the Veteran's disability that have required bed rest and treatment prescribed by a physician. See 38 C.F.R. § 4.71a, DC 5243. Accordingly, an initial rating greater than 10 percent for chronic thorax myofascial strain, status-post 9th right posterior rib fracture, is not warranted in this case. B. PTSD with alcohol and substance dependence The Veteran's PTSD with alcohol and substance dependence is rated under DC 9411, 38 C.F.R. § 4.130. Under DC 9411, the following applies: A 30 percent rating is warranted when there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 rating is warranted when there is 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); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). VA examinations in June 2012, February 2014, and June 2016 reflect symptoms, based on both the Veteran's own subjective report and objective examination, of: depressed mood; anxiety, chronic sleep impairment; mild memory loss, flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; obsessional rituals which interfere with routine activities; recurrent thoughts; nightmares; some suicidal ideation; irritability and anger; and hypervigilance. The greatest level of occupational and functional impairment noted was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, on June 2016 examination. Extensive VA treatment records beginning in August 2011 are consistent with the VA examination findings. These records reflect such symptoms as anxiety, nightmares, depression, anger, irritability, and some suicidal ideation. It was consistently noted that thought process was normal and thought content appropriate with no psychosis, delusions, hallucinations or other unusual thinking. Hygiene and grooming were good, the Veteran was fully oriented, and behavior was organized and cooperative. The record at no point indicates such severe impairment as total occupational and social impairment, or symptoms of the nature or severity of 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, or memory loss for names of close relatives, own occupation, or own name. Conversely, in a February 2013 statement, the Veteran's attorney argues that the Veteran's rating for his PTSD should be 70 percent, explicitly stating that the evidence "confirms that a 70 percent evaluation is appropriate." There has been no assertion by the Veteran or his attorney that the 100 percent criteria under DC 9411 have been met, or that the Veteran's PTSD has been productive of the symptoms or level of impairment contemplated in the criteria for a 100 percent rating. Accordingly, an initial rating greater than 70 percent for PTSD with alcohol and substance dependence is not warranted in this case. ORDER Service connection for left ear hearing loss is granted. Service connection for headaches is granted. An initial rating in excess of 10 percent for chronic thorax myofascial strain, status-post 9th right posterior rib fracture, is denied. An initial rating in excess of 70 percent for PTSD with alcohol and substance dependence is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs