Citation Nr: 20004359 Decision Date: 01/21/20 Archive Date: 01/17/20 DOCKET NO. 17-55 320 DATE: January 21, 2020 Entitlement to service connection for bilateral hearing loss is denied. Prior to August 8, 2017, entitlement to a total 100 percent disability for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The preponderance of the evidence does not show that the Veteran’s current bilateral hearing loss manifested during active service or to a compensable degree within one year of separation from active service, or that the bilateral hearing loss is at least as likely as not etiologically related to his active service, to include in-service exposure to noise. 2. Throughout the period on appeal, the Veteran’s PTSD was manifested by symptoms productive of functional impairment comparable to total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.C.S. §§ 1110, 1112, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to an increased rating of 100 percent for PTSD, effective March 2, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.400(o)(2), 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a June 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran requested a Travel Board hearing. See October 2017 VA Form 9. A hearing was scheduled in October 2019, but the Veteran did not appear for the hearing and was marked as a “no show” in the Veterans Appeals Control and Locator System (VACOLS). To date, he has not requested a new Board hearing or provided good cause for his absence. Accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704(d). The Board notes that a claim for entitlement to service connection for tinnitus is listed on the Veteran’s August 2017 Notice of Disagreement (NOD). A review of the record reflects that the RO has acknowledged the claim and initiated development of the claim but has not yet issued a rating decision on this matter. See October 2017 Correspondence. Therefore, the issue of entitlement to service connection for tinnitus is referred to the RO for appropriate action. During the pendency of the appeal, an August 2017 rating decision granted an increased rating for PTSD of 100 percent, effective August 8, 2017. Accordingly, as of August 8, 2017, the assigned 100 percent evaluation represents the full award of the benefit sought as of that date. Accordingly, only the period prior to August 8, 2017 remains pending on appeal. The Board notes that October 2016 and March 2017 private psychiatric assessment letters indicated the Veteran’s service-connected PTSD precluded him from gainful employment. Accordingly, a claim of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, as noted above, the Veteran has been awarded a total 100 percent disability rating effective August 8, 2017. Additionally, in the decision below, the Board grants entitlement to a total 100 percent disability rating effective the date of the claim; March 2, 2017. Accordingly, as the Veteran is in receipt of a total 100 percent rating throughout the period on appeal, and in consideration that the Veteran is solely service connected for PTSD, the claim for entitlement to a TDIU has been rendered moot. Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Bilateral Hearing Loss. The Veteran seeks entitlement to service connection for bilateral hearing loss. Specifically, the Veteran asserts that his hearing loss is related to in-service noise exposure. See March 2017 VA Form 21-526b; August 2017 NOD. Initially, the Board recognizes the Veteran’s August 2017 NOD in which he asserted he was an explosives expert and exposed to Agent Orange during service. Accordingly, the Veteran appears to have asserted entitlement to hearing loss on the basis of exposure to herbicides. In this regard, the Board notes that the Veteran had active service in Vietnam and is presumed to have been exposed to herbicides. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). Although the Veteran is presumed to have been exposed to Agent Orange, hearing loss is not a presumptive disease listed under 38 C.F.R. § 3.309(e). The Veteran has additionally not provided any evidence showing an etiological connection between his bilateral hearing loss and herbicide exposure. Accordingly, the Veteran’s service connection claim for bilateral hearing loss cannot be granted on a presumptive basis and the preponderance of the evidence is against finding that a medical nexus exists between bilateral hearing loss and herbicide exposure. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). However, service connection for bilateral hearing loss may still be granted on a non-presumptive direct-incurrence basis. A hearing loss disability for VA purposes means that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. In May 2017, the Veteran underwent a VA audiological examination that demonstrated he had a bilateral hearing loss disability for VA purposes under the provisions of 38 C.F.R. § 3.385. The examiner conceded that the Veteran’s in-service MOS exposed him to traumatic noise. Therefore, the first two Shedden requirements have been met and the remaining question on appeal is whether the current bilateral hearing loss disability is etiologically related to his conceded in-service noise exposure. After a review of the evidence of record, the Board finds that entitlement to service connection for bilateral hearing loss is not warranted. In this regard, the Board notes that the Veteran underwent a VA examination in May 2017. The examiner noted that the Veteran’s November 1966 enlistment examination and October 1968 discharge physical examination did not document bilateral hearing loss. Additionally, the examiner noted no threshold shift during service. Despite noting that the Veteran’s MOS during service (combat engineer) exposed him to traumatic noise, the examiner opined that it was not “at least as likely as not (50% probability or greater)” that the bilateral hearing loss was etiologically related to service. In support of this opinion, the examiner noted a National Academy of Sciences article which concluded that based on current medical knowledge, there was no sufficient scientific basis for the existence of delayed-onset hearing loss. The examiner additionally found that “[w]ith all things equally weighed, it is my opinion that hearing loss is not due to or the result of military service. The Board further notes that the Veteran did not first report hearing difficulty until July 2016, and bilateral hearing loss for VA purposes was not established until the May 2017 VA examination. Thus, the evidence reflects the bilateral hearing loss had its onset decades after separation from service. The Board finds the May 2017 VA examination report the most probative evidence of record. The VA examiner adequately explained the reasons for her conclusions based on review of the record with consideration of the Veteran’s subjective complaints. The examiner further provided a well-supported rationale. Thus, the May 2017 VA examiner’s opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board does recognize the Veteran’s lay statements linking his bilateral hearing loss to in-service noise exposure. With regard to lay evidence of a nexus, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this vein, the Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran is competent to report purported symptoms such as difficulty hearing or whether he has received a diagnosis from a medical professional. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, without evidence showing that he has medical training or expertise, he cannot competently provide a medical nexus opinion between a current diagnosis, bilateral hearing loss, and an in-service event, such as noise exposure. 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372 (2007). In any event, to the extent the Veteran may be competent to opine as to medical etiology, the Board finds that the Veteran’s lay assertions in the present case are outweighed by the May 2017 VA medical examiner’s opinion, who determined that the there was no nexus between the Veteran’s bilateral hearing loss and service. The examiner has training, knowledge, and expertise on which she relied to form her opinion, and she provided a persuasive rationale. Importantly, there is no medical evidence to the contrary. Thus, the Board finds that the third Shedden requirement has not been met. Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. PTSD The Veteran filed his current increased rating claim on March 2, 2017. Throughout the period on appeal, the Veteran’s PTSD has been rated pursuant to 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. A maximum 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). As noted above, the Veteran submitted a claim for an increased rating on March 2, 2017. During the pendency of the appeal, he was granted an increased 70 percent rating effective March 2, 2017, and a total 100 percent evaluation effective August 8, 2017. See August 2017 rating decision. Therefore, the question before the Board is whether, prior to August 8, 2017, the Veteran is entitled to a rating in excess of 70 percent. Based on the evidence of record prior to August 8, 2017, the Board finds that a 100 percent disability rating is warranted effective March 2, 2017; the date of claim. In this regard, March 2017 VA treatment records demonstrate that the Veteran’s reported recurrent suicidal ideation and that he had plans for committing suicide though no suicide attempt was ever made. See March 2017 VA treatment records. Additionally, the Veteran reported hearing voices in his home. Id. The Veteran was provided a VA examination in May 2017. The VA examiner concluded that the Veteran’s symptomatology was manifested by occupational and social impairment with reduced reliability and productivity. See May 2017 VA examination. However, the VA examiner noted the Veteran’s report of experiencing higher levels of anxiety since his previous examination and that he had been verbally aggressive with his wife. Id. The VA examiner stated that the Veteran denied auditory and visual hallucinations; however, she did note the Veteran’s reports to his psychiatrist that included reports of hearing voices and seeing a human figure in his home. Id. Additionally, the Veteran submitted a March 2017 letter from his psychiatrist, Dr. F., who he had been seeing since July 2015. Dr. F. noted the Veteran employment had been terminated due to his PTSD symptoms and that he had difficulties in completing activities of daily living. Id. Dr. F. concluded that the Veteran was considered to be permanently and totally disabled from gainful employment. See March 2017 Private Treatment Summary. After a review of the evidence of record, the Board finds it is factually ascertainable that the Veteran exhibited symptoms more nearly approximating a higher 100 percent total rating throughout the period on appeal. In coming to this conclusion, the Board provides substantial weight to the March 2017 letter from the Veteran’s treating psychiatrist. (Continued on Next Page) Accordingly, the Board finds that the preponderance of the evidence demonstrates that the Veteran’s symptoms more nearly approximated total occupational and social impairment throughout the period on appeal. The claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code 9411; Gilbert v. Derwinski, 1 Vet. App. at 53. CHRISTOPHER LAMB Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.