Citation Nr: 19155192 Decision Date: 07/17/19 Archive Date: 07/17/19 DOCKET NO. 16-60 045 DATE: July 17, 2019 ORDER Service connection for hyperacusis, analogous to tinnitus, is granted. Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is denied. An initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s hyperacusis, analogous to tinnitus, is related to in-service noise exposure. 2. The Veteran does not have a current acquired psychiatric disability. 3. The Veteran’s service-connected bilateral hearing loss is no worse than Level II in the right ear and Level II in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for hyperacusis, analogous to tinnitus, are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for an acquired psychiatric disability, to include PTSD, depression, and anxiety, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1972 to October 1977. This case is on appeal before the Board of Veterans’ Appeals (Board) from September 2014 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran initially filed a claim for service connection for PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims clarified how the Board should analyze claims for PTSD and other acquired psychiatric disabilities. As emphasized in Clemons, a veteran’s claim “cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed.” Id. Accordingly, the Board has recharacterized the issue. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 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 a condition noted during service is not shown to be chronic, then a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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. I. Tinnitus / Hyperacusis The Veteran seeks service connection for hyperacusis, analogous to tinnitus. He alleges that this condition is related to exposure to jet engine noise during service and indicates that he has experienced sensitivity to loud sounds since separation. Moreover, the Veteran claims that this impairment was mischaracterized in the May 2015 rating decision, which linked it to his service-connected bilateral hearing loss. Instead, the Veteran argues that his hyperacusis is more akin to tinnitus and therefore seeks a separate grant of service connection. See June 2015 notice of disagreement; see also December 2016 Form 9. For certain chronic diseases, such as organic diseases of the nervous system, which include both sensorineural hearing loss and tinnitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran underwent audiological testing as part of his June 1977 separation examination. Although the audiogram revealed hearing within normal limits, the Veteran still complained of hearing loss. However, there are no further reports of audiological abnormalities until decades after separation. The Veteran sought treatment at a VA facility in October 2011 after a loud sound hurt his ears. An audiogram performed during that evaluation revealed bilateral hearing loss limited to the higher test frequencies. In June 2014, the Veteran presented to his treating VA audiologist with complaints of sensitivity to loud sounds. The attending physician diagnosed him with hyperacusis and prescribed hearing aids with low-level masking sounds to help him cope with this condition. The Veteran underwent a VA audiological examination in September 2014. During this evaluation, he denied communication difficulties and tinnitus. Rather, he indicated that his primary concern was his inability to tolerate loud sounds. The Veteran stated that his hyperacusis is particularly evidence when he is in the vicinity of sirens and motorcycles. The Veteran was afforded a second VA audiological examination in May 2015. The examiner conducted an in-person evaluation and reviewed the Veteran’s service treatment records, noting that acoustic trauma during service had been conceded by the VA. Moreover, there were known links between acoustic overexposure and numerous hearing problems beyond elevation of audiometric threshold. These include tinnitus, which is the persistent perception of phantom sounds in the absence of stimulation, as well as hyperacusis, the perception of moderate-level sounds as intolerably loud. The examiner went on to cite medical literature indicating that these conditions are known to be common sequelae of acoustic overexposure. Although the Veteran again denied experiencing tinnitus, he stated that his hyperacusis began in the service after exposure to noise from jet engines on full power. As such, the examiner opined that his hyperacusis was at least as likely as not related to in-service noise exposure. After careful consideration of the claims file, the Board determines that the evidence of record supports a separate grant of service connection for the Veteran’s hyperacusis, analogous to tinnitus. The medical evidence currently associated with the claims file confirms that both tinnitus and hyperacusis share a common etiology. Indeed, both are described as hearing problems that exist beyond elevation of the audiometric threshold. While tinnitus is classified as the perception of phantom sound, hyperacusis is characterized as the perception of moderate-level noise as being intolerably loud. Here, the Board notes that the Veteran has not reported symptoms consistent with tinnitus at any point during the appeal period. Indeed, he affirmatively denied experiencing tinnitus at both the September 2014 and May 2015 VA examinations. Nonetheless, the evidence of record reflects a diagnosis of hyperacusis and supports the Veteran’s assertion that it is related to events in service. The Board recognizes that the Veteran was previously awarded service connection for hyperacusis in a May 2015 rating decision. However, rather than assign a separate rating for this impairment, the RO instead combined it with the previously-assigned noncompensable evaluation for the Veteran’s service-connected bilateral hearing loss. After de novo review of the claims file, the Board now concludes that this determination was in error. As explained in the following section, the symptoms experienced by the Veteran are not addressed in the portion of the General Ratings Schedule governing awards for hearing loss disabilities. As such, the Board determines that the Veteran is entitled to a separate grant of service connection for his hyperacusis. Although this condition is not recognized as a standalone impairment in the General Ratings Schedule, it nonetheless shares a common etiology with tinnitus and results in similar symptomatology. In any event, because he is currently rated for bilateral hearing loss with hyperacusis, a separate rating for hyperacusis is also within the scope of his increased rating claim also on appeal, providing a separate path to the Board’s jurisdiction. Thus, the Veteran’s hyperacusis will be rated as analogous to tinnitus for the purpose of awarding VA compensation, and the Veteran’s claim for service connection for hyperacusis, analogous to tinnitus, is granted. II. Acquired Psychiatric Disability The Veteran seeks service connection for an acquired psychiatric disability, which he traces to events in service. However, he does not allege a particular incident or trauma as the origin of this condition. See June 2015 notice of disagreement. Generally, service connection for PTSD 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. 38 C.F.R. § 3.304(f). Depending on the circumstances, there are several avenues to document an in-service stressor: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to a veteran’s fear of hostile military or terrorist activity, with appropriate medical evidence from a VA psychiatrist or psychologist. 38 C.F.R. § 3.304(f). If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). However, these provisions do not establish a presumption of service connection, but rather ease a combat veteran’s burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Caluza v. Brown, 7 Vet. App. 498 (1995). That is, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). The Veteran’s service treatment records indicate that he was enrolled in alcohol recovery programs twice during his time in the military. He went through the first program in August 1975 and the second in September 1976. Additionally, the Veteran’s June 1977 separation examination indicates that he suffered from “depression and excessive worry due to family problems” and states that he was then “under treatment.” There are no further indications of an acquired psychiatric disability until decades after separation. Indeed, repeated depression and PTSD screens conducted at VA facilities between 2008 and 2011 were negative. In September 2011, the Veteran was referred for PTSD evaluation after reporting that he became tense around loud noises. The attending VA psychologist found no prior history of psychiatric treatment or evidence of symptoms sufficient to support an Axis I diagnosis under the DSM-4. In September 2014, the Veteran was afforded a VA psychiatric examination. The examiner reviewed the claims file and conducted an in-person evaluation, noting the in-service report of depression and anxiety. Nonetheless, the examiner found no evidence of a diagnosed mental health condition. Moreover, the Veteran had no history of psychiatric hospitalizations, nor were there any indications that he had ever been prescribed psychotropic medications. The examination report states that the Veteran appeared anxious. However, he denied experiencing delusions or hallucinations, and his judgment and insight appeared to be adequate. Based on these findings, the examiner concluded that the Veteran’s current psychiatric complaints were less likely than not related to service. Indeed, the Veteran had no history of mental illness prior to joining the military. Additionally, his service treatment records indicate that he was psychologically fit for unrestricted duty throughout service. The depression and anxiety noted in June 1977 were related to family stressors then existing. By contrast, the Veteran did not meet the diagnostic criteria for any DSM-5 mental health condition at the time of the evaluation. Repeated depression and PTSD screens conducted by VA physicians since September 2014 have likewise been negative. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran has a current acquired psychiatric disability related to active service. The Board notes that the opinion provided by the VA examiner in September 2014 is the only statement from a medical professional to address both the nature and etiology of the Veteran’s claimed acquired psychiatric disability. The VA examiner had the benefit of examining the Veteran and the claims file and provided clear bases for her findings. Indeed, the VA examiner found nothing to support the existence of a current DSM-5 diagnosis. Although the Veteran was noted to suffer from depression and anxiety during his June 1977 separation examination, these symptoms were related to then-present family stressors. The fact that the Veteran has never been diagnosed with a mental health disability, nor been prescribed psychotropic medications, nor undergone therapy in the decades since separation all indicate that these symptoms have since resolved. The Board thus affords the greatest probative weight to the opinion of the September 2014 VA examiner, and adopts her conclusion that the Veteran does not have a current acquired psychiatric disability related to service. The Board also acknowledges the statements of the Veteran, which assert the existence of a service-connected acquired psychiatric disability. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to offer an opinion concerning the etiology of a complex medical condition. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). While the Veteran is competent to report psychiatric anomalies, he is not competent to diagnose himself with a mental health condition. Therefore, for the reasons discussed above, the Board finds that the opinion provided by the VA examiner in September 2014 is more probative than the Veteran’s lay assertions. The VA examiner has expertise, education, and training the Veteran is not shown to have. As such, that opinion is entitled to greater evidentiary weight. In conclusion, the Board determines that the weight of the evidence is against finding that the Veteran has a current acquired psychiatric disability. Although the Board acknowledges the Veteran’s assertions to the contrary, the majority of the evidence is inconsistent with his statements. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that the evidence weighs against a finding of a current disability and service connection must therefore be denied.. Increased Rating for Hearing Loss The Veteran seeks an initial compensable disability rating for his service-connected bilateral hearing loss, which is currently assigned a zero percent evaluation under 38 C.F.R. § 4.86, Diagnostic Code 6100. See June 2015 notice of disagreement. 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. § 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. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim 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). Mechanical application of the Rating Schedule to the numeric designations for audiometry evaluations determines disability ratings for hearing impairment. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for VA compensation purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85(a). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” determines a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. 38 C.F.R. § 4.85(b). Pure tone threshold average, as used in Tables VI and VIa, is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Table VII, “Percentage Evaluations for Hearing Impairment,” determines a percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and not every item of evidence has the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Ultimately, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim will be denied. Id. The Veteran was afforded a VA audiological examination in September 2014. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 30 50 5 29 LEFT 30 30 40 50 38 Speech discrimination scores were noted as 96 percent on the right and 96 percent on the left. Under Table VI, the combination of these scores and the Veteran’s pure tone threshold averages results in Roman numeral designations of I for the right ear and I for the left. When applied to Table VII, these numerals yield a noncompensable rating. The Veteran underwent a second VA audiological examination in May 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 45 50 36 LEFT 25 25 35 50 34 Speech discrimination scores were noted as 84 percent on the right and 88 percent on the left. Under Table VI, the combination of these scores and the Veteran’s pure tone threshold averages results in Roman numeral designations of II for the right ear and II for the left. When applied to Table VII, these numerals yield a noncompensable rating. The Board finds that the weight of the evidence is against the assignment of a compensable evaluation for the Veteran’s service-connected bilateral hearing loss throughout the period on appeal. Although the Board acknowledges the Veteran’s statements that he experiences numerous hearing difficulties, problems such as these are contemplated by the currently-assigned noncompensable disability rating. To the extent that any higher level of compensation is sought, the preponderance of the evidence is against the claim; hence, the benefit of the doubt doctrine does not apply. Gilbert, 1 Vet. App. at 58. Accordingly, the Veteran’s claim for an initial compensable evaluation for service-connected bilateral hearing loss is denied. The Board recognizes that the 4000 hertz pure tone threshold in the Veteran’s right ear at his September 2014 VA examination may be a typographical error, as it is unusually low compared to his other thresholds. Any error, however, is not prejudicial to the Veteran. Given that he has shown no worse than Level II hearing loss in his left ear, he would need at least Level V hearing loss in his right ear to warrant a compensable rating. Even taking his 84 percent speech discrimination score from his other examination, there are no thresholds alone which warrant Level V hearing loss on Table VI, and his other thresholds preclude the possibility of exceptional hearing loss allowing use of Table VIa. In any event, even if the error rendered the September 2014 VA examination inadequate, the May 2015 VA examination provides adequate measurement of his hearing loss on which a rating may be based. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.