Citation Nr: 18127669 Decision Date: 08/20/18 Archive Date: 08/17/18 DOCKET NO. 12-21 940 DATE: August 20, 2018 ORDER 1. Entitlement to a compensable rating for bilateral hearing loss is denied. 2. Entitlement to an increased rating in excess of 10 percent for shell fragment wound of the left leg and knee with moderate instability of the knee, mild internal derangement, and mild muscle injury, muscle group XII is denied. 3. Entitlement to an increased rating in excess of 10 percent for hepatitis C is denied. REMANDED 1. Issue of entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. 2. Issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss has manifested by hearing impairment no worse than an auditory acuity of Level I, normal hearing. 2. Throughout the period on appeal, the weight of the evidence supports the Veteran’s shell fragment wound of the left leg and knee, with moderate instability of the knee, mild internal derangement, and mild muscle injury, muscle group XII, has been manifested by no greater than penetrating and non-penetrating muscle injuries from shrapnel fragments that affect the left muscle group XII, with evidence of in-service treatment, less than normal strength in the lower extremities, but no loss of deep fascia or muscle substance. 3. Throughout the period on appeal, the weight of the evidence supports the Veteran’s hepatitis C has been manifested by no greater than intermittent fatigue, malaise, and anorexia, and no incapacitating episode of more than two weeks in a 12 period. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2017). 2. The criteria for an increased rating in excess of 10 percent for shell fragment wound of the left leg and knee with moderate instability of the knee, mild internal derangement, and mild muscle injury, muscle group XII have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 5312 (2017). 3. The criteria for an increased rating in excess of 10 percent for hepatitis C have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 7354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1968, to include service in the Republic of Vietnam. He is a recipient of the Purple Heart Medal and Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2009, May 2011, and April 2013 rating decisions issued by the Department of Veterans Affairs (VA). The Veteran perfected his appeal (see the January 2010, January 2012, and June 2013 Notices of Disagreement; July 2012 and April 2014 Statements of the Case; and August 2012 and May 2014 VA Form 9s). While the appeals were pending, an August 2014 rating decision granted a temporary 100 percent rating from January 17, 2014, through March 31, 2014, for hospitalization in excess of 21 days for the Veteran’s PTSD, pursuant to 38 C.F.R. § 4.29. As the Veteran was in receipt of the maximum possible rating for PTSD during that period, it is no longer on appeal. The Veteran testified before a Veterans Law Judge in an October 2016 hearing. A transcript of the hearing is associated with the claims file. In August 2017, the Board remanded this matter for the Agency of Original Jurisdiction (AOJ) to further develop the Veteran’s claims, which included asking the Veteran to submit the appropriate forms to allow the VA to obtain any outstanding private treatment records; affording the Veteran VA examinations for his bilateral hearing loss, hepatitis C, and injury to muscle Group XII; and affording the Veteran a VA examination for his PTSD that also specifically addresses whether a diagnosis of a substance abuse disorder is warranted at any time since August 2010. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a compensable rating for bilateral hearing loss. The Veteran’s service connected bilateral hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. His bilateral hearing loss is currently rated at zero percent and noncompensable, effective from September 27, 2007. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations without the use of hearing aids. Generally, ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal acuity, through Level XI for profound deafness. The results of testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or if the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz; the degree of disability will be evaluated as an exceptional pattern of hearing impairment using Tables VIA and VII. 38 C.F.R. § 4.86. The Veteran testified during the October 2016 hearing that his hearing has worsened since 2012. The Veteran is competent to report his experience of decreased hearing acuity. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). He is not, however, competent to state whether his symptoms warrant a specific rating under the schedule for rating disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran underwent two VA audiological examinations during the appellate period, each resulting in a zero percent disability rating under the criteria in 38 C.F.R. § 4.85. The May 2012 VA audiological examination shows the average of the pure tone threshold values at the 1000, 2000, 3000, and 4000 Hertz frequencies was 35 decibels in the right ear and 34 decibels in the left ear, with speech discrimination scores of 92 percent in each ear. The March 2018 VA audiological examination shows the average of the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz frequencies was 49 decibels in the right ear and 38 decibels in the left ear, with speech discrimination scores of 96% in each ear. While the VA audiological examinations show the Veteran has higher pure tone threshold values in 2018 when compared to 2012, the results from either examination show no more than a Level I numerical designation hearing impairment and a zero percent rating for each ear. 38 C.F.R. § 4.85, Tables VI, VII. Neither the May 2012 nor the March 2018 VA audiological examinations show pure tone threshold values to be considered an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. Accordingly, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. 2. Entitlement to an increased rating in excess of 10 percent for shell fragment wound of the left leg and knee with moderate instability of the knee, mild internal derangement, and mild muscle injury, muscle group XII. The Veteran’s service connected shell fragment wound of the left leg and knee with moderate instability of the knee, mild internal derangement, and mild muscle injury, muscle group XII is evaluated under 38 C.F.R. § 4.73, DC 5312. The Veteran’s condition is currently classified as moderate and rated at 10 percent, effective from May 1, 1993. For muscle injury rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Under DCs 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56(d). A 10 percent rating is warranted for a moderate muscle disability. The type of injury associated with a "moderate" muscle disability is a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. A history with regard to this type of injury should include service department evidence or other evidence of in service treatment for the wound and consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). The next higher rating of 30 percent is warranted for a moderately severe muscle disability. The type of injury associated with a "moderately severe" muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). The Veteran asserts in his September 2012 statement that his shell fragment wounds of the left leg continue to worsen. During the October 2016 hearing, the Veteran testified that he has swelling of the knees about twice a month, lasting five to six days, and affects his ability to walk. The Veteran also testified that he uses a cane and his knees feel like they will give out. After careful review of the evidentiary record, the Board determines that the Veteran’s shell fragment wound of the left leg and knee with moderate instability of the knee, mild internal derangement, and mild muscle injury, muscle group XII, more closely approximates the criteria for a moderate muscle injury throughout the period on appeal. The Veteran’s testimony about knee swelling twice a month affecting his ability to walk is inconsistent with his statements during the February 2018 VA knee and lower leg examination. The VA examiner related that the Veteran reported no flare-ups of his bilateral knees and lower legs, no pain on weight bearing, or functional loss. VA treatment records since a year prior to his December 2008 claim show the Veteran has sought continuous treatment for a number of conditions, but did not complain of symptoms from his shell fragment wound of the left leg. While the Board may not reject any uncorroborated statement as not credible merely because the contemporaneous medical evidence is silent as to complains or treatment for the relevant condition or symptoms, it is a factor in determining credibility of lay evidence. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, VA treatment records in 2017 consistently noted a stable or normal gait. In regard to the medical evidence, a February 2018 VA muscle injuries examination shows the Veteran has small and well healed scars on the left knee and leg from shrapnel fragments during service. The VA examiner noted a history of penetrating and non-penetrating muscle injury from the shrapnel fragment injury, but no evidence of fascial defects associated with a muscle injury or a muscle injury affecting muscle substance or function. The VA examiner did find less than normal strength in the Veteran’s lower extremities, but in both the left side and sound right side. VA treatment records since December 2008 show no loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, or uncertainty of movement due to a muscle disability. A June 2008 VA treatment record shows the Veteran complained of lower extremity pain, but it was assessed as degenerative changes in the lumbar spine. The Veteran’s complaint of weakness and fatigue in an August 2014 VA treatment record were related to his anemia, abdominal pain, and weight loss, and not his muscle injury. Accordingly, the history and objective findings associated with the Veteran’s shell fragment wound of the left leg and knee with moderate instability of the knee, mild internal derangement, and mild muscle injury, muscle group XII more closely approximates a moderate muscle disability and a 10 percent rating. 3. Entitlement to an increased rating in excess of 10 percent for hepatitis C. The Veteran’s service connected hepatitis C is evaluated under 38 C.F.R. § 4.114, DC 7354. It is currently rated at 10 percent, effective from November 20, 2002. Under Diagnostic Code 7354, a 10 percent rating is warranted for intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12 month period. 38 C.F.R. § 4.114, DC 7354 (2017). The next higher rating at 20 percent is warranted for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12 month period. Id. For purposes of evaluating conditions under DC 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, DC 7354, Note (2) (2017). The Veteran asserts his hepatitis C continues to worsen. During the October 2017 hearing, the Veteran testified his hepatitis C causes a loss of appetite, no energy, and a weight loss of 12 pounds in the last year. The Veteran also testified that his hepatitis C medication causes sluggishness, weakness, and loss of appetite. However, the Veteran’s assertion and testimony is not consistent with other lay statements and evidence in the claims file that show no more than intermittent hepatitis C symptoms that improved with treatment during the period under appeal. During the April 2012 VA hepatitis examination, the Veteran indicated he was not receiving treatment for hepatitis C and denied symptoms of abdominal pain or jaundice. The VA examiner found no symptoms of liver disease, including fatigue, malaise, or vomiting. VA treatment records show the Veteran did not start hepatitis C treatment until July 2016. A September 2016 VA treatment record indicates the Veteran was taking Harvoni for his hepatitis C and denied any pain concern, indicated being happy with his treatment, and that he had no side effects from his medication. The Veteran completed his hepatitis medication treatment in in December 2016, and a February 2018 VA treatment record indicates his last hepatitis C test showed an undetectable viral load. The medical evidence shows the Veteran had weight loss during the period under appeal, but occurring during treatment for increased PTSD symptoms. A December 2013 VA treatment record indicates the Veteran related he lost 10 pounds in the last three months when his younger brother passed away and he started having increased PTSD symptoms. A January 2014 VA treatment record shows the Veteran was given a nutritional plan, and not a dietary restriction, for a dense caloric diet. By March 2014 VA treatment records notes the Veteran’s weight stabilized and he was eating better since his psychiatric treatment with improvement. As noted above, an August 2014 VA treatment record shows the Veteran complained of abdominal pain, fatigue, weakness, and weight loss in the last two to three months. However, this is inconsistent with VA treatment a month later in September 2014, in which the Veteran related to having a stable weight for the last five months. The Veteran also denied any abdominal pain or fatigue at that time. In February 2018, the Veteran was afforded another VA examination for hepatitis C. The examiner found the Veteran did not need continuous medication for control of the Veteran’s liver condition, has no signs or symptoms attributable to a liver disease, and had no incapacitating episodes within the past 12 months. The evidence suggests the Veteran has some fatigue, but not on a daily basis, and no need for dietary restrictions or continuous medication for his hepatitis C. Accordingly, the evidence supports no more than a 10 percent rating is warranted. REASONS FOR REMAND 1. Issue of entitlement to an increased rating in excess of 50 percent for PTSD. The Board cannot make a fully-informed decision on the issue of an increased rating in excess of 50 percent for PTSD because clarification is needed on whether the Veteran had a substance abuse disorder during the period on appeal. The August 2017 Board remand indicates that the a medical opinion is needed to determine whether the Veteran had a substance abuse disorder at any time from August 2010 to the present and, if so, whether a substance abuse disorder is at least as likely as not incurred secondary to his service connected PTSD. The March 2018 VA examination for PTSD indicates the Veteran has no diagnosed mental disorder other than PTSD. However, it is unclear if the VA examiner’s opinion is that the Veteran had been misdiagnosed with substance abuse disorder since August 2010, or if the VA examiner found no current substance abuse disorder and did not consider the entire period under appeal as directed by the August 2017 Board remand. The VA examiner noted the Veteran has a history of an opioid use disorder, but has been drug free since September 2017. There is no opinion with rationale as to whether the VA examiner disagreed with the Veteran’s past diagnosis of a opioid use disorder. If the VA examiner’s opinion is limited to the period after September 2017, then an opinion is needed for the period from August 2010 through September 2017. 2. Issue of entitlement to TDIU. Finally, because a decision on the remanded increased rating claim for PTSD could significantly impact a decision on entitlement to TDIU, the issues are inextricably intertwined. Adjudication of the TDIU claim is deferred pending development on remand and re adjudication of the increase rating claim for PTSD. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any evaluations and/or treatment received for mental disorder(s), to specifically include PTSD and a substance abuse disorder, and provide authorizations for VA to obtain records of any such private treatment. Obtain complete clinical records of all pertinent evaluations and treatment (records of which are not already associated with the claims file) from the VA or private treatment providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the claims file. If a provider does not respond to VA’s request for the identified records sought, the Veteran must be so notified and reminded that it is ultimately his responsibility to ensure that private treatment records are received. 2. Advise the Veteran that he may submit a supplemental medical opinion from a treating physician or any other medical professional that addresses whether his PTSD symptoms warrant an increased rating. If such an opinion is provided, the treating physician (or any other medical professional) should set forth in the medical report a fully articulated rationale for the opinion expressed. The report should consider and discuss the Veteran’s medical history and relevant clinical data that apply in this case, which may reasonably explain the medical guidance in the study of this case. 3. Obtain an addendum opinion from an appropriate medical professional (if possible, from the same March 2018 VA examiner) to determine the severity of the Veteran’s PTSD. If the medical professional determines that it is necessary, schedule the Veteran for a VA examination. The medical professional should respond to the following: (a) What is current severity of the Veteran’s PTSD? (b) Does the Veteran have a diagnosis of a substance abuse disorder at any time from when the Veteran filed his increased rating claim in August 2010 to the present? If substance abuse disorder may be diagnosed, is it at least as likely as not (a 50 percent probability or greater), that any such disorder was incurred secondary to his service connected PTSD? If substance abuse disorder may be diagnosed, but the examiner has determined that it is not secondary to PTSD, is it possible to differentiate between the symptoms attributable to PTSD and those to substance abuse disorder for the entire period from August 2010 to the present? If it is possible, please indicate which symptoms are attributable to PTSD and which are not, with rationale as to why. (Continued on next page) 4. After the above development has been completed, review the record and ensure that all development sought in this remand has been completed. Arrange for any further development indicated by the results of the development requested above, and re-adjudicate the claims for an increased rating for PTSD and for TDIU. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. The case should be returned to the Board, if in order, for further appellate review. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel