Citation Nr: 19106924 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 15-27 633 DATE: January 29, 2019 ORDER 1. Entitlement to service connection for a lumbar spine (lower back) disability, to include degenerative arthritis, is denied. 2. Entitlement to service connection for a bilateral hearing loss disability is denied. 3. Entitlement to an initial disability rating in excess of 10 percent for tinnitus, to include on an extraschedular basis, is denied. REMANDED 4. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. 5. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) is remanded. 6. Entitlement to service connection for psychosis or other mental illness for treatment purposes only under 38 U.S.C. § 1702 is remanded. FINDINGS OF FACT 1. The Veteran’s current lumbar spine disability was not incurred in service, arthritis was not shown to a compensable degree within one year of service discharge, and is not otherwise related to service. 2. The Veteran does not currently have a hearing loss disability for VA purposes in either ear. 3. Throughout the appeal period, the Veteran’s tinnitus has been assigned a 10 percent rating, the maximum schedular rating authorized under Diagnostic Code 6260; an unusual or exceptional disability picture is not presented by this disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability, to include degenerative arthritis, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 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 bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 3. The criteria for an initial disability rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1995 to June 1999. In the Veteran’s July 2015 substantive appeal (VA Form 9), a Board videoconference hearing was requested. A videoconference hearing was scheduled for October 29, 2018. However, in October 2018 correspondence, the Veteran requested that the hearing be cancelled and indicated that he did not wish to reschedule. Thus, there is no hearing request pending at this time and the Board will continue with adjudication of the Veteran’s appeal. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Arthritis and hearing loss (as an organic disease of the nervous system) are chronic conditions listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a lumbar spine disability. The Veteran contends that service connection for a lumbar spine disability is warranted because it was incurred in service or otherwise related to his military service. The Veteran has a current lumbar spine disability. In a June 2011 VA examination report (contracted), the examiner indicated the Veteran’s diagnosis is degenerative arthritis of the lumbar spine, which was shown by x-ray. Accordingly, the first element of service connection, evidence of a current disability, is met. As to an in-service disease or injury, a review of the Veteran’s service treatment records reveals complaints of lower back pain in December 1996, February 1997, and February 1999. In December 1996, the Veteran reported that he worked on the flight deck and lifted tow bars all day but reported that there was no history of trauma and denied bowel/bladder and radicular issues. The medical professional made an assessment of a lumbar strain. In February 1997, the Veteran complained of lower back pain but indicated that he did not know why or how the pain came about. An assessment of lower back strain was made. A February 1999 service treatment record shows that the Veteran complained of lower back pain during the work day while working on the flight deck without bowel/bladder or radicular symptoms. The Veteran was instructed to use a heating pad as necessary and return to the medical department if his symptoms did not improve. The Veteran’s April 1999 separation examination revealed normal bodily systems including the lower extremities and the spine (and other musculoskeletal systems). The Veteran also reported that he was in “good” health and denied a past/current medical history of “swollen or painful joints”; “broken bones”; “arthritis, rheumatism or bursitis”; and “bone, joint or other deformity,” in the accompanying report of medical history in April 1999. However, the Veteran checked “yes” when asked if he had a past/current medical history of “recurrent back pain or any back injury.” The Veteran wrote that he had “off and on back pain from flight deck” and the examiner noted “recurrent LBP (lower back pain) OTC (over-the-counter) have PT (physical therapy) / stretching).” In a May 1999 report of medical assessment, when asked if he had suffered from any injury or illness while on active duty for which he did not seek medical care, the Veteran checked “yes” and wrote “back pain.” The health care provider noted recurrent lower back pain of 3 years treated with over-the-counter medication and stretching. Following examination in June 2011, the examiner stated that the April 1999 report of medical examination at separation showed a normal clinical evaluation including for the spine and that the Veteran was 19 years old when the diagnoses of mechanical lower back pain and lumbar strain were made. The examiner opined that it is more than likely that a mechanical lower back pain and lumbar strain would have resolved in a 19-year-old soldier. He noted the 14-year time gap from the complaints in service to the time of the examination, which did not establish a longitudinal trend of subjective complaints and objective findings. The Veteran’s clinical evaluation for the spine at separation was normal and the June 2011 examiner opined that such complaints of lower back pain should have resolved, which tends to establish that the Veteran did not have arthritis in his lumbar spine in service. Additionally, there is no competent evidence that arthritis manifested to a degree of 10 percent disabling or more within one year from his June 1999 separation from service. Thus, a presumption of service connection based on the chronicity of arthritis is not warranted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). The Board has considered the Veteran’s lumbar spine disability on a direct basis and finds that the preponderance of the evidence is against a showing of a nexus between the Veteran’s current lumbar spine disability and service. During the June 2011 examination, the Veteran reported that his lumbar condition existed with pain in the lower back since 1997 and was not due to injury or trauma. The Veteran indicated that he was not receiving any treatment and was never hospitalized nor had any surgery for his lower back condition. The VA examiner opined that it is less likely as not that the Veteran’s current diagnosis of lumbar degenerative arthritis is related to an in-service event, including the December 1996 to February 1997 service treatment records with diagnoses of mechanical lower back pain and lumbar strain. The examiner provided the rationale that the last service treatment records referencing lower back pathology in February 1997 represent a 14-year time gap at the time of examination, which did not establish a longitudinal trend of subjective complaints and objective findings and therefore a causal relationship cannot be established. The examiner added that Veteran’s report of medical examination from April 1999 included a normal clinical evaluation including the spine. Further, the examiner stated that the Veteran was 19 years old when the diagnosis was made and mechanical lower back pain and lumbar strain would have resolved in a 19-year-old soldier. The Veteran has alleged that his lower back disability is related to service. However, he is not medically trained and is therefore not qualified to competently opine about medical etiology. The Veteran has attempted to establish a nexus through his own lay assertions that his lumbar spine disabilities are caused by or related to his military service, however, the Veteran is not competent to offer opinions as to the etiology of his lumbar spine disabilities. A diagnosis of a lumbar spine disability requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. The Board has considered evidence that showed that the Veteran did not seek medical treatment for any lumbar spine condition even over a decade after service. The Veteran has not offered probative and competent medical evidence to support his assertions on medical etiology. The Board finds that the Veteran’s lumbar spine disability did not manifest in service, and that it is not etiologically related to his active duty military service. Accordingly, service connection for a lumbar disability on a direct basis is not warranted. The preponderance of the evidence is against the claim of service connection for a lumbar spine (lower back) disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a bilateral hearing loss disability. The Veteran contends that service connection for a bilateral hearing loss disability is warranted because it was caused by his in-service exposure to acoustic trauma. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims of service connection for hearing loss disability, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service connection for a bilateral hearing loss disability is not warranted because the Veteran has does not have a current hearing loss disability in either ear for VA purposes. In June 2011, the Veteran underwent a VA audiological assessment (contracted), which showed that the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 10 10 LEFT 15 15 10 10 15 The assessment revealed a speech recognition score of 100 percent and 96 percent using the Maryland CNC Test for the right ear and left ear, respectfully. The audiologist indicated that there is no diagnosis for the Veteran’s claimed bilateral hearing loss because there is no pathology to render a diagnosis. The Veteran does not have a current hearing loss disability in either ear for VA purposes. The auditory threshold is not 26 or greater in at least three, or 40 or greater in at least one, of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz for either ear. Speech recognition testing is not less than 94 percent using the Maryland CNC Test. 38 C.F.R. § 3.385. Therefore, the evidence does not support a finding that the Veteran has a current hearing loss disability in either ear for VA purposes and does not meet the first requirement of service connection. A subsequent VA audiological examination was scheduled for March 2015 with a contracted audiologist, however, the Veteran did not appear for the scheduled appointment. This examination was scheduled based on a discussion at a February 2015 informal conference that the Decision Review Officer (DRO) had with the Veteran’s representative, where they agreed the DRO would schedule the Veteran for a new audiological examination. The Veteran and his representative were informed in the June 2015 statement of the case of the Veteran’s failure to report for the March 2015 VA audio examination. The statement of the case included the provisions of 38 C.F.R. § 3.655. In the discussion of this issue in the statement of the case, the DRO wrote, “Notification has been received that the Veteran did not report for this VA examination scheduled March 12, 2015; good cause for failure to report has not been provided as of the date of this Statement of Case.” Neither the Veteran nor his representative have provided good cause for the Veteran’s failure to report to the examination nor did they indicate that the Veteran would be willing to appear for another examination or request that a new examination be scheduled. There is no other medical evidence of record to support a finding of a hearing loss disability in either ear for VA purposes. The Board has also considered lay statements from the Veteran; however, lay assertions do not constitute a competent clinical diagnosis of a hearing loss disability for VA purposes, as there are specific requirements to meet a hearing loss disability, and the Veteran has not met those requirements. In the absence of a current diagnosis for a right or left ear hearing loss disability for VA purposes, service connection cannot be established. If the Veteran’s hearing loss worsens, he may submit a new claim for service connection for a hearing loss disability of either or both ears. The preponderance of the evidence is against the claim of service connection for a bilateral hearing loss disability, the benefit-of-the-doubt doctrine is not for application, and the claim for service connection is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   Increased Rating Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. 3. Entitlement to an initial disability rating in excess of 10 percent for tinnitus, to include on an extraschedular basis. The Veteran is seeking an increased initial rating for bilateral tinnitus. The Veteran has been assigned a 10 percent rating for his tinnitus, which is the maximum schedular allowance under DC 6260 and there is no provision for assignment of a separate 10 percent evaluation for tinnitus of each ear. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit found that 38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, DC 6260 limit a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Board has considered whether the Veteran’s disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the established schedular criteria are inadequate to describe the severity and symptoms of the claimant’s disability. See Thun v. Peake, 22 Vet. App. 111, 118 (2008). The Veteran’s tinnitus is manifested by ringing in his ears. The Veteran’s tinnitus is contemplated by the rating criteria under DC 6260. To the extent that it is asserted that the tinnitus interferes with the Veteran’s daily activities, the functional effects of his tinnitus are how the disability impacts him in his ordinary activities, including the effect on his activities including difficulty with concentration, sleeping, and relaxation during episodes of tinnitus as described during the June 2011 VA examination. Even though these effects may not be explicitly written in the DC, the rating schedule for tinnitus is written so broadly and inclusively so as to compensate for all associated symptoms and functional effects. See 38 C.F.R. § 4.87; 68 Fed. Reg. 25822 (May 14, 2003). Notably, in Doucette v. Shulkin, the United States Court of Appeals for Veterans Claims has made clear that a diagnostic code need not list every word or type of symptom to contemplate a type of functional effect. For instance, problems with hearing sounds in crowds, televisions or telephones are not listed in the diagnostic code for hearing loss but are nonetheless contemplated because they are the actual effects of the hearing loss in daily life. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Here, although in the context of a tinnitus extraschedular rating claim, the Doucette decision by extension shows that the symptoms of the Veteran’s tinnitus, and their functional effects, are contemplated by the rating schedule for evaluating the disability. The Board finds that the rating criteria adequately describe the Veteran’s disability level and symptomatology. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. at 115. Consequently, referral for extraschedular consideration is not warranted. The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus of 10 percent. 38 C.F.R. § 4.87, DC 6260. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear or a higher evaluation overall, the Veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 4. - 6. Entitlement to service connection for posttraumatic stress disorder (PTSD); an acquired psychiatric disorder other than PTSD; and treatment under 38 U.S.C. § 1702 are remanded. Service connection for PTSD specifically requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §§3.304(f), 4.125(a). The Veteran contends that service connection for PTSD is warranted because it was incurred in service or otherwise caused by service, to include 1) cleaning up, specifically including brain fragments, after an aircraft crash on the flight deck where the pilot was killed in 1999; 2) witnessing a helicopter with a pilot that had his neck cut off from a plane crash in 1996 while on Mediterranean Cruise; 3) witnessing someone get run over and dragged by a car for about 100 feet on base in 1997; 4) an incident where his friend killed himself after an accident with a loaded gun; 5) a July 1996 incident where a female recruit jumped overboard and was never found; 6) in October 1996 while on Mediterranean Cruise “almost blown off” the ship by a F-18 fighter jet; and 7) while on Mediterranean Cruise, the hanger bay caught on fire and the captain yelled “abandon ship” during flight operations and the captain yelling “brace for shock, missile in-bound.” The Veteran provided details of the incidents in a February 2011 statement; during the June 2011 examination; and in two July 2012 statements. In a March 2012 memorandum, the RO indicated that the information required to corroborate the stressful events described by the Veteran is insufficient to send to the US Army JSRRC and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. It is noted in this memorandum that in February 2012, a follow-up letter was sent to the Veteran requesting more detailed information but the Veteran did not respond. The Board finds that given the newly-provided details, discussed above, an additional attempt to corroborate the PTSD stressors is warranted. A determination with respect to the service connection claim for PTSD may have an impact upon consideration of the issues of 1) entitlement service connection for an acquired psychiatric disorder (other than PTSD) and 2) entitlement to service connection for psychosis or other mental illness for treatment purposes only under 38 U.S.C. § 1702 on appeal; the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. As such, Board consideration of the merits of the Veteran’s entitlement to service connection for an acquired psychiatric disorder (other than PTSD) and 38 U.S.C. § 1702 claims are deferred pending adjudication of the Veteran’s service connection claim for PTSD. The matters are REMANDED for the following action: 1. Contact the appropriate records repositories to verify the Veteran’s claimed in-service stressors in connection with his service connection claims for PTSD and other acquired psychiatric disorders, which are mentioned in a February 2011 statement; during the June 2011 examination; and in two July 2012 statements. The Veteran’s claimed PTSD stressors include 1) cleaning up after an aircraft crash on the flight deck where the pilot was killed in 1999; 2) witnessing a helicopter with a pilot that had his neck cut off from a plane crash in 1996; 3) witnessing someone get ran over and dragged by a car on base in 1997; 4) an incident where his friend killed himself after an accident with a loaded gun; 5) a July 1996 incident where a female recruit jumped overboard and was never found; 6) in October 1996 while on Mediterranean Cruise “almost blown off” the ship by a F-18 fighter jet; and 7) while on Mediterranean Cruise, the hanger bay caught on fire and the captain yelled “abandon ship” during flight operations and the captain yelling “brace for shock, missile in-bound.” See (i) VBMS entries (2, separate entries) with document type, “Correspondence,” receipt date 07/02/2012; (ii) Legacy Content Manager Documents entry with document type “C&P Exam,” receipt date 06/20/2011; (iii) VBMS document type “VA 21-0781, Statement in Support of Claim for PTSD,” receipt date 02/23/2011; and (iv) VBMS entry with document type “VA 21-4138 Statement in Support of Claim,” receipt date 02/08/2011. Correspondence from the JSRRC Coordinator should also be referenced when attempting to verify the Veteran’s claimed PTSD stressors. See VBMS entry with document type, “VA Memo,” receipt date 03/21/2012. Document negative responses received, to include a formal finding on a lack of information required to verify the claimed PTSD stressors and outlining all efforts to corroborate the PTSD stressors as applicable. 2. If and only if a PTSD stressor is verified, schedule the Veteran for an appropriate VA examination to assist in determining the nature and etiology of his current acquired psychiatric disorder symptoms, if any are present. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. The Veteran’s claims file should be reviewed by the examiner in conjunction with the examination. The examiner should identify and describe all current symptomatology. The examiner should provide a detailed review of the Veteran’s current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran’s PTSD or other acquired psychiatric disorder, as applicable. The examiner is asked to answer the following question: If the examiner determines that a diagnosis of an acquired psychiatric disorder, to include PTSD, has been present at any time during the appellate period, the examiner should opine whether it is at least as likely as not (50 percent probability or more) that this acquired psychiatric disorder, if present, was caused by or is otherwise related to his active duty service, to include his claimed in-service stressors. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After all available evidence has been associated with the record, review the evidence and determine if further development is warranted. The AOJ should take any additional development as deemed necessary. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel