Citation Nr: 20004480 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-17 253 DATE: January 21, 2020 ORDER Entitlement to service connection for bilateral tinnitus is granted. Entitlement to service connection for a gastrointestinal disability is granted. Entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The competent and credible evidence of record is at least in equipoise that the Veteran’s bilateral tinnitus is shown to be causally or etiologically related to an in-service event, injury or disease. 2. After resolving reasonable doubt in the Veteran’s favor, the Veteran’s gastrointestinal disability was caused or aggravated by his service-connected left ankle disability and left shoulder disability. 3. The Veteran’s service-connected PTSD was manifested by no more than occupational and social impairment with deficiencies in most areas due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impaired judgement, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control; but is not manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for gastrointestinal disability have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 3. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 2002 to April 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a hearing. The transcript of the hearing is of record. Service Connection Generally, to establish service connection a 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for bilateral tinnitus is granted. After affording the Veteran the benefit of reasonable doubt, the Board concludes that there is persuasive evidence that his tinnitus began during service and has been present since that time. Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include bilateral tinnitus, that manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Tinnitus is considered an organic disease of the nervous system, which is listed as a “chronic disease” under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015) (tinnitus is an “organic disease of the nervous system” subject to presumptive service connection under 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 where there is evidence of acoustic trauma and nerve damage). As such, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply to the claim for tinnitus. A review of the service treatment records shows the Veteran had normal drums and ears with no complaints, treatment, or diagnosis of tinnitus in the September 2002 enlistment examination and December 2004 examination. See June 2006 STR – Medical and December 2014 STR – Medical – Photocopy. However, as the Veteran reported that he was exposed to excessive noise from IED explosions and C-4 explosions while in service, the Board finds, in the light most favorable to the Veteran, that the second element of service connection has been met. A review of post service treatment records shows no complaints or symptoms of bilateral tinnitus. In the July 2016 VA examination, the examiner diagnosed the Veteran with tinnitus and opined that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. The examiner noted that the Veteran reported that his tinnitus occurred about seven years after service. The examiner explained that the Veteran’s delayed onset of tinnitus due to loud excessive noise in service is inconsistent with the research and textbooks regarding noise-induced tinnitus. The examiner further noted that research studies have shown that hazardous noise exposure has an immediate effect on hearing and does not have delayed onset nor is it progressive or cumulative. In the July 2019 hearing, the Veteran testified that his bilateral tinnitus manifested as a result of being exposed to loud excessive noise in service such as improvised explosive device (IED) and C-4 explosions. The Veteran further attested that his tinnitus manifested during his deployment and not after his service as noted in the July 2016 VA examination. See July 2019 Hearing Transcript. The Board concludes that despite the VA examiner’s conclusion that tinnitus is not related to in-service noise exposure, the Veteran has credibly reported that he began to experience ringing in his ears during service that has continued to the present time. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). The Board notes that a probative medical nexus opinion is not necessarily required in this case. Tinnitus is defined as “a noise in the ear, such as ringing, buzzing, roaring, or clicking.” See Dorland’s Illustrated Medical Dictionary 1714 (28th ed. 1994). Given the nature of tinnitus, it is a rare type of disability for which the Veteran is competent to establish the onset, continuity, and current presence of tinnitus on the basis of his own lay assertions. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears (tinnitus)). Thus, the Veteran is competent to state that he began experiencing tinnitus during service, and that it has continued to the present. The Board finds that the competent and credible evidence of record is at least in equipoise that the Veteran’s bilateral tinnitus occurred in service. As such, in light of the facts noted above, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for bilateral tinnitus are met. 2. Entitlement to service connection for gastrointestinal disability is granted. In addition, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). At the outset, the Board noted that the Veteran has a current diagnosis of gastroesophageal reflux disease (GERD) with esophagitis, duodenitis, and peptic ulcer disease. See August 2016 C&P Exam. As such, the first element of service connection is met. The Board further notes that the Veteran is service connected for his left ankle and left shoulder disability. The Veteran was afforded a VA examination in August 2016 wherein the examiner opined that the Veteran’s stomach/esophageal disability is either a disease with a clear and specific etiology and diagnosis, a disease of undetermined etiology common in the general population, or a diagnosable chronic multi-symptom illness with a partially explained etiology and as such is less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. Further, the examiner opined that the environmental/chemical toxic exposure during military service in Southwest Asia is less likely as not to be the cause of the gastrointestinal (GI) symptoms/condition. However, the Veteran has several risk factors for GI disease, including long term and ongoing smokeless tobacco use, intermittent nonsteroidal anti-inflammatory drugs (NSAID) use, and alcohol use are at least as likely as not to be the cause of the Veteran’s GI conditions. The examiner explained that NSAID are responsible for the majority of peptic ulcers not caused by H. pylori and are associated with an increased risk of complications from peptic ulcer. NSAIDs cause de novo peptic ulcers and exacerbate underlying peptic ulcer disease due to helicobacter pylori. A review of the post-service treatment records shows that the Veteran took NSAID for his shoulder disability. See June 2016 CAPRI and August 2016 C&P Exam. Further, in the July 2019 hearing, the Veteran reported that he took NSAID for his service-connected left ankle disability. The Board finds that the competent and credible evidence of record is at least in equipoise that the Veteran’s gastrointestinal disability is secondary to his service-connected left shoulder and left ankle disability. Specifically, the August 2016 examiner conceded that the records show that the Veteran took NSAIDs for his left shoulder disability and that the use of NSAID is at least as likely as not to be the cause, or one of the contributing factors, of the Veteran’s GI conditions. Based on the foregoing, the Board grants the Veteran’s claim for entitlement to service connection for gastrointestinal disability secondary to his service-connected left shoulder and left ankle disability. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id. The Veteran’s PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms 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 or minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives and own occupation or name. Id. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. 3. Entitlement to a rating in excess of 70 percent for service-connected PTSD is denied. The Veteran filed a claim for entitlement to a rating in excess of 70 percent for PTSD in May 2016. See May 2016 VA 21-526EZ, Fully Developed Claim. In the July 2019 hearing, the Veteran claimed that he should be assigned a 100 percent rating for his service-connected PTSD. The Veteran testified that he is hypervigilant and not sociable and has nightmares and night terrors. However, despite these symptoms the Veteran admitted that he has never gotten in trouble at work or had any adverse employment actions taken against him due to his PTSD. The Veteran further attested that he has no current treatment for his PTSD. A review of the records shows that the Veteran’s PTSD is consistent with a finding of no more than 70 percent disabling. The Veteran was afforded a VA examination in June 2016 wherein the Veteran endorsed symptoms such as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impaired judgement, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control. However, the Veteran admitted that he has a job in a machine shop where he works with one other person and has a supervisor. On a mental status examination, the Veteran had appropriate appearance and hygiene, appropriate behavior, and normal orientation. His communication was within normal limits; speech was normal; and thought process was appropriate. He understood directions and answered direct questions. The Veteran denied having present or past delusions, hallucinations or obsessions. The Veteran did not appear confused, and denied suicidal or homicidal ideation. The Veteran reported that he has mild degree of memory impairment related to names, directions, and/or recent events, but no memory-related tests were administered. The treatment records in 2016 are consistent with a finding of no more than 70 percent disabling rating for the Veteran’s PTSD. For instance, in February 2016 and April 2016 treatment records, the Veteran reported having irritability, intermittent insomnia, social avoidance, and “pretty bad” long-term and short-term memory. However, on examination, the Veteran was noted to be neat, clean, pleasant, cooperative, coherent, and oriented. The Veteran’s speech was spontaneous and/or monotone with normal rate/rhythm. His thoughts were goal directed and logical. The Veteran had good to fair concentration, good memory, good intelligence, good abstraction, good comprehension, and good memory. The Veteran denied having delusions, hallucination, and suicidal or homicidal ideation. See June 2016 CAPRI. The Board notes that although the Veteran at times was noted to have rapid speech, thoughts that tends to move quickly from one train of thought to another, and variable judgment, the Veteran was consistently noted to have good to fair concentration, good memory, good abstraction, good intelligence, good comprehension, and fair insight. See February 2017 CAPRI. Based on the evidence of record, the Board finds that the Veteran’s PTSD does not more nearly approximate the criteria for a disabling rating of 100 percent. The Board finds that the Veteran’s PTSD, at most, exhibited occupational and social impairment consistent with a 70 percent disabling rate. Specifically, the records note of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impaired judgement, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control, all consistent with a 70 percent rating or less. The Veteran’s PTSD does not meet the criteria for a higher rating in excess of 70 percent as the records show that there is no evidence of obsessional rituals, spatial disorientation, neglect of personal appearance or hygiene, gross impairment in thought process or communication, or significant memory loss. Importantly, total social and occupational impairment has not been shown. Accordingly, the Veteran’s claim for entitlement to a rating in excess of 70 percent for his service-connected PTSD is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, 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.