Citation Nr: 1819829 Decision Date: 04/03/18 Archive Date: 04/12/18 DOCKET NO. 14-00 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a left arm disorder, status post fracture with rod placement. 2. Entitlement to service connection for a left leg disorder, to include left knee degenerative changes, status post tibia/fibula fracture with rod placement. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Andrew L. Wener, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active service from November 1989 to September 1990. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2012 and September 2012 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. This case was previously before the Board in June 2016, when the issues remaining on appeal were remanded to the RO for additional evidentiary development. When this matter was before the Board in June 2016, the appeal included the issue of entitlement to service connection for an acquired psychiatric disorder. During the processing of the Board's remand, that issue was resolved by an August 2017 RO rating decision that granted service connection for schizophrenia (with a 100 percent rating); the decision notified the Veteran that it was "considered to have favorably resolved the issue on appeal." Accordingly, the psychiatric issue is no longer in appellate status for the Board's consideration at this time. Veteran's Motion for a New Board Hearing The Board notes that the Veteran and his representative submitted a VA Form 9 in December 2017 (the submission was not needed to perfect an appeal on the issues before the Board, which had already been perfected and were on remand from the Board). The December 2017 submission included a request for a new Board videoconference hearing. The appellant previously testified at a Board hearing chaired by the undersigned Veterans Law Judge (VLJ) in February 2016. A transcript of the hearing has been associated with the Veteran's VA claims folder. No reason has been provided as to why the prior Board hearing was in any way inadequate or why another hearing may be necessary for the Veteran. The record on appeal reveals no reason why another hearing should be conducted. The United States Court of Appeals for Veterans Claims (Court) recently held that a VA claimant who received a personal hearing before the Board at an earlier stage of appellate proceedings is entitled to receive, upon request, a Board hearing following the Court's remand of the same claim. Cook v. Snyder, 28 Vet. App. 330 (2017). However, unlike in the Cook case, these issues on appeal before the Board have not been appealed to the Court and returned to the Board on remand. Thus, this case is distinguishable from the fact pattern in Cook. Moreover, there is no good cause to warrant a second hearing, such as a failure to record the prior hearing or a change in representation since that hearing. Indeed, the Veteran's representative did not provide any reason why a new hearing would be needed. A transcript of the prior Board hearing is of record, and the Veteran's current representative was present at the hearing. Neither the Veteran nor his representative have articulated a reason why a new hearing would be needed nor otherwise identified good cause for a new Board hearing. The Board finds that a new hearing is not needed. The motion for another personal hearing is denied. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a left arm disability etiologically linked to his active military service. 2. The Veteran does not have a left leg / knee disability etiologically linked to his active military service. 3. It is not shown that the Veteran has, or during the pendency of the claim has had, hearing loss in either ear meeting the VA criteria to be considered disabling. CONCLUSIONS OF LAW 1. The criteria for service connection for a left arm disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for a left leg / knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Analysis Direct Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Presumptive Service Connection and Continuity of Symptomatology For certain "chronic diseases," presumptive service connection is available. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Arthritis is among the "chronic diseases" identified in 38 C.F.R. § 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the chronic disease became manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Evaluating Lay Evidence For the purpose of evaluating lay evidence, to include a veteran's statements about the circumstances of his service, competent evidence is "limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness, a lay person is "not competent to opine as to medical etiology or render medical opinions." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Service Connection for Left Arm Disability and Left Leg Disability For the purposes of the analysis in this decision only, the Board accepts that the Veteran has current disabilities of the left arm and the left leg. Evidence of record, featuring medical evidence from prior to the pendency of this claim, shows that the Veteran has had rods installed to stabilize bones in his left arm and his left leg that had been fractured; for instance, a November 2004 private medical report obtained from the Social Security Administration (SSA) documents the placement of these rods in the left tibia and the left humerus at some point during 2003. Setting aside any questions regarding the diagnostic nature of any current residual disability, the Board shall proceed in this analysis under the assumption that the Veteran has some current residual disabilities associated with past injury to his left arm and to his left leg. In February 2012, the RO documented telephone contact with the Veteran as including the Veteran's explanation that he "would like to add a claim for his right leg and right arm. He slipped and fe[l]l and has a rod in his arm and leg." In July 2012, the RO documented telephone contact with the Veteran that clarified / corrected the prior documentation: "Veteran states the issues of Arm and Leg is for the Left side not the Right side. States he has rods in ... the left arm and leg." The service treatment records do not document any pertinent injury to the left arm or the left leg during service, nor does any other evidence or testimony of record identify any in-service injury to the left arm or left leg. The Veteran declined to present any testimony on this matter during his February 2016 Board hearing. The evidence of record does document pertinent post-service injuries of the left arm and left leg with no suggestion of any link between the Veteran's military service and any left arm or left leg disability. A July 1993 medical report associated with the Veteran's SSA records describes: "The patient was in an automobile accident one year ago and he claims injury to his left leg." Also from a July 1993 medical report associated with the SSA records is the notation "that he was struck by a trail[e]r truck about one year ago .... He says his left leg gives him trouble...." A June 1996 medical report associated with the Veteran's SSA records describes: "Injury of the left leg in 1992 in a motor vehicle accident[.] The patient was a pedestrian and was hit by a motor vehicle." A November 2003 medical report associated with the Veteran's SSA records describes: "Recent trauma with fractures of the left tibia, both the distal and proximal, and fractures of the left fibula, distal and proximal...." A November 2004 medical report associated with the Veteran's SSA records describes: "He is having arthritis in [] both legs and arms. He had a history of car wreck a year ago in which he fractured his left tibia, and he underwent internal fixation with intramedullary rod in the left tibia. At the same time, he had a fracture of his left humerus and he also had rod in his left humerus." A June 2010 report associated with the Veteran's SSA records describes: "LEFT LEG SWOLLEN STATES WAS HIT BY A CAR 2[]YEARS AGO...." A September 2010 report associated with the Veteran's SSA records describes: "gunshot wound to the left leg" treated in an emergency room in "09/10 or 10/10." A June 2011 private medical report (in a set received in February 2012) documents "[h]istory of open reduction and internal fixation of the left humerus and left tibia, from a fracture from a motor vehicle accident in January 2011." A February 2012 VA medical report notes a past medical history of "MVA in 2003, had surgery on L arm and leg." The Board finds that the preponderance of the evidence is against finding that the Veteran's claimed disabilities of the left arm and left leg were incurred in service. The absence of any documentation of any pertinent in-service injury weighs against the claims. The evidence does not establish any event in service to which the Veteran's claimed left arm and left leg disabilities featuring the surgical placement of stabilizing rods may be medically attributed. The post-service medical records also weigh significantly against the claim, as they specifically attribute the Veteran's left arm and left leg injuries to post-service events, including specifically the fractures resulting in the placement of rods for stabilization that were cited by the Veteran in presenting this claim. There is no contrary competent medical opinion of record that attributes any disability of the left arm or left leg to the Veteran's military service. Accordingly, there is no showing of nexus between the Veteran's military service and his claimed left arm and left leg disabilities, so the third element of direct service connection has not been met. To the extent that the Veteran's assertions suggest that he "slipped and fe[l]l and has a rod in his arm and leg," the Board finds that the more probative contemporaneous evidence of record indicates that no such injury occurred during military service and, rather, the identified injuries specifically occurred sometime after the conclusion of the Veteran's military service. Finally, the Board notes that it has considered the applicability of alternative theories of entitlement, to include presumptive service connection and continuity of symptomatology for arthritis. However, as there is no evidence that the Veteran had any arthritis noted during service, and as there is no evidence that arthritis was manifested to a compensable degree during the year following service, service connection for any arthritis involved in the claimed left arm and left leg disabilities is not warranted. Service Connection for Bilateral Hearing Loss The Veteran seeks to establish entitlement to service connection for bilateral hearing loss, claiming that he has a hearing loss disability in both ears as a result of his active duty military service. The United States Court of Appeals for Veterans Claims (Court) has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 19 (2007). In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The claim for service connection for bilateral hearing loss was filed in February 2012. Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing is 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. The initial threshold matter that must be addressed here (as in any claim seeking service connection) is whether or not there is competent evidence that the currently has (or during the pendency of the claim/appeal has had) the disability for which service connection is sought (a hearing loss disability in either ear, or both). The Veteran was afforded a VA audiology examination in connection with this claim in April 2012. The report of that examination documents that the pertinent specialized testing revealed that the Veteran did not have hearing loss meeting the criteria to be considered disabling by VA in either ear. The Veteran did not have an auditory threshold of 40 decibels or greater in any of the pertinent frequencies (500, 1000, 2000, 3000, 4000 Hertz). He did not have auditory thresholds of 26 decibels or greater for at least three of the pertinent frequencies (indeed, none of the auditory thresholds were 26 decibels or greater). His speech recognition scores using the Maryland CNC Test were not less than 94 percent in either ear. The VA examiner found that the test results were valid. The VA examiner's diagnostic conclusion was that the Veteran had "Normal hearing" in both ears. The Board finds no contrary competent medical evidence of record that presents the type specialized findings pertinent to this diagnostic question at issue to indicate that the Veteran has been diagnosed with hearing loss meeting the VA criteria to be considered disabling. Accordingly, the Board finds that the competent and probative April 2012 VA examination report's findings are persuasive. The Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing difficulty hearing). To this extent, the Board finds that the Veteran is competent to report that he has current difficulty hearing. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the diagnosis of a hearing loss disability that meets the criteria of 38 C.F.R. § 3.385 requires specific diagnostic testing which is outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). As it is not shown that the Veteran has (or during the pendency of this claim/appeal has had) a bilateral hearing loss disability, the threshold requirement for substantiating a claim of service connection for such disability is not met. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss; the benefit of the doubt rule is not applicable and the appeal in this matter must be denied. ORDER Service connection for a left arm disorder, status post fracture with rod placement, is denied. Service connection for a left leg disorder (to include left knee degenerative changes), status post tibia/fibula fracture with rod placement, is denied. Service connection for bilateral hearing loss is denied. REMAND As discussed above, the Veteran was recently granted service connection for schizophrenia in an August 2017 RO rating decision. This change in the Veteran's established service-connected disability picture has become significant to the appellate review of the Veteran's claim of entitlement to service connection for hypertension. The November 2016 VA examination report with medical opinion addressing the Veteran's hypertension issue was prepared before service-connected status was established for a psychiatric disorder; significantly, however, the November 2016 VA medical opinion presents a rationale that significantly suggests that the Veteran's hypertension may be etiologically linked (at least through aggravation) to his now service-connected psychiatric disorder. The November 2016 VA examiner states: most of this Veteran's inpatient admissions from 1993 to present have been Psychiatric treatment.... And a result of his having either a manic, combative problem or having suicidal/homicidal ideations. Most of his admission drug screens were + for cocaine. Any one of these problems would raise his blood pressure. Having all three would almost guarantee a hypertensive range blood pressure. The Board finds that this medical opinion raises (but does not resolve) the question of whether the Veteran's psychiatric disorder may be medically determined to have caused or to have aggravated the Veteran's diagnosed hypertension. Accordingly, a remand for an addendum medical opinion to clarify this matter is necessary (in light of the grant of service connection for a psychiatric disorder that occurred subsequent to the preparation of the November 2016 VA medical opinion). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain an updated set of the Veteran's VA medical records (any records not already associated with the claims-file) pertinent to the issue remaining on appeal. 2. The AOJ should arrange for the Veteran's claims-file to be forwarded to the VA examiner who authored the November 2016 VA examination report for a clarifying addendum / opinion regarding the etiology of the Veteran's hypertension pathology. If the examiner who provided the November 2016 opinion is unavailable, another qualified medical professional may provide the requested opinion. A new examination should only be performed if the medical professional providing the opinion finds one is necessary. The examiner must review the Veteran's claims file, and based on such review (and, if necessary, examination of the Veteran), provide an opinion responding to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension has been caused by his service-connected psychiatric disorder? (b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension has been aggravated (i.e. worsened in degree of severity) by his service-connected psychiatric disorder? Please be sure to separately and specifically address the questions of causation and aggravation. If the opinion is to the effect that the service-connected psychiatric disorder aggravated (but did not cause) the Veteran's hypertension, please identify, to the extent possible, the degree of additional disability (pathology/impairment) resulting from such aggravation, indicating the "baseline" severity of such disability prior to any aggravation by a service-connected disability and the level of severity existing after the aggravation occurred. In providing these opinions, the examiner must specifically acknowledge and discuss the November 2016 VA medical opinion's discussion that the Veteran's past manic episodes, combative problems, suicidal/homicidal ideation, and cocaine use "would raise his blood pressure," and that the combination would "guarantee a hypertensive range blood pressure." Please also discuss the November 2016 VA medical opinion's observation that the Veteran's blood pressure was "normal" at the time of his "2001 admission (his only one with a cocaine negative drug screen)" and that "he was on no medication for HTN" at that time. A complete rationale for all opinions rendered must be provided. If an opinion cannot be provided without resorting to speculation, the medical professional must explain why this is so and must identify what additional information, if any, would be required to provide an opinion. 3. When the development requested above is completed, the AOJ should review the record and consider all the available evidence, arrange for any further development deemed necessary, and readjudicate the issue remaining on appeal. If the claim on appeal remains denied to any extent, the appellant and his representative should be furnished an appropriate supplemental statement of the case (SSOC) and afforded an opportunity to respond. This case should then be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs