Citation Nr: 20005446 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 19-09 998 DATE: January 22, 2020 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder, is remanded. Entitlement to service connection for cervical spine disability, claimed as cervicothoracic spine pain, is remanded. Entitlement to service connection for headaches, claimed as cephalgia, to include as secondary to service-connected disability, is remanded. Entitlement to an increased initial evaluation in excess of 40 percent for lumbar spine disability is remanded. FINDINGS OF FACT 1. A current right ear hearing loss disability for VA purposes has not been shown. 2. A current left ear hearing loss disability for VA purposes has not been shown. CONCLUSIONS OF LAW 1. A right ear hearing loss disability was not incurred in or aggravated by service, and such incurrence may not be presumed. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. A left ear hearing loss disability was not incurred in or aggravated by service, and such incurrence may not be presumed. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to October 1985. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Veteran’s original claims for service connection for PTSD have been expanded to include his other claimed and diagnosed psychiatric disorders, specifically PTSD and adjustment disorder, and the claim has been recharacterized as such on the title page. As the Veteran is unrepresented in this case, VA has a duty to construe his claims liberally. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). The Veteran has indicated that he is retired, but VA medical examiners have indicated his disabilities do not prevent him from working, and nor has the Veteran ever asserted that his service-connected disabilities prevent him from gaining and maintaining suitable employment. The Board thus considers that a TDIU is not inferred by the record. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for Right Ear and Left Ear Hearing Loss Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The United States Court of Appeals for Veterans Claims held that “when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” In evaluating claims of service connection for hearing loss, 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, 160 (1993). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Service connection may also be granted for 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). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system such as sensorineural hearing loss, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for hearing loss can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). In the absence of proof of a current disability, there is no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis – Right Ear and Left Ear Hearing Loss The Veteran contends that exposure to loud noise during active service caused his current hearing loss disability. The Veteran has provided lay statements that his service as a munitions loader during 20 years of active service, working around jet aircraft with their engines running, exposed to him to loud noise and degraded his hearing over time. Because the Veteran has made same assertion for both of his ears, the Board will discuss them together. As the Veteran lacks a current diagnosis of hearing loss in either ear, and though VA concedes an in-service injury in the form of acoustic trauma, the preponderance of the evidence weighs against a finding that the Veteran has a claimed hearing loss disability in either ear that is related to the acoustic trauma sustained in service. For this reason, the claim is denied. Current Disability First, the evidence of record does not demonstrate that the Veteran has a current bilateral hearing loss disability that comports with VA’s definition of disability resulting from hearing impairment. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 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 of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran has received a VA audiological examination that evaluated his hearing loss in September 2017. For the September 2017 examination, none of the tested frequencies in either ear exceeded 40 dB, and only the left ear 3000 Hz frequency and right ear 2000 and 3000 Hz frequency exceeded 26 dB; the average was 26 dB in the right ear and 23 dB in the left ear. The Maryland CNC test was 100 percent in each ear. The examiner noted all frequencies and measurements pursuant to 38 C.F.R. § 3.385 were tested, and acoustic immittance was considered normal in each the right ear and the left ear. Sensorineural hearing loss in the frequency range of 6000 Hz or higher was noted for each the right ear and left ear, but no sensorineural hearing loss was noted in the frequency range of 500 to 4000 Hz range for either ear. This September 2017 examiner also provided a negative nexus opinion for service connection, saying it was less likely than not, less than 50 percent probability, that any hearing loss was caused by or a result of an event in military service for each ear. The examiner’s rationale was that the Veteran’s hearing exhibited no change when comparing the entrance examination with the separation examination. The examiner also noted the Veteran served as a law enforcement officer for 16 years after active service, on top of 20 years of active military service, and still had hearing considered within normal limits. The record establishes the Veteran has no current hearing loss considered disabling for VA purposes. The Board has conceded hazardous noise exposure while in service. However, the preponderance of the evidence is against the Veteran’s claim of service connection for hearing loss. The Veteran’s lay statements contrast with a finding of normal hearing from VA in September 2017. The Board notes there is no additional evidence in the Veteran’s favor, beyond his own statements. In the absence of proof of a current disability, there is no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board notes that the September 2017 VA audiologist opined that any hearing loss was less likely than not due to the Veteran’s active military service. The finding for service connection requires proof of a current disability, and the Veteran’s examination for right ear and left ear hearing loss does not reach the threshold of hearing loss for VA purposes. Thus, the preponderance of the evidence is against a finding of current hearing loss disability for VA purposes, and therefore service connection for a right ear or left ear hearing loss disability is not warranted. 38 C.F.R. §§ 3.303, 3.385. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder is remanded. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-5, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125(a). See also Cohen v. Brown, 10 Vet. App. 128 (1997). The Veteran submitted a psychological evaluation from August 2017 by a private psychologist that indicated he had PTSD and also an adjustment disorder. However, there is no evidence that private examiner had access to the Veteran’s service records, the evaluation and rationale are extremely sparse, and the examination does not appear to meet VA standards for a diagnosis of PTSD. No formal opinion with rationale for service connection was provided with that examination. With regard to the requirement for an in-service stressor for the PTSD claim, the Veteran submitted a lay statement that he had been exposed to an incident at the “ammo dump” blowing up while deployed to Royal Thai Air Force Base (RTAFB) Korat, Thailand from November 1967 to November 1968. At the time, the Veteran was a munitions loader as part of the 388th Tactical Fighter Wing there, as shown by his service personnel records in the claims file. The Veteran stated the blast could be felt all over the base and that he was in fear of his life because of that. The Joint Services Records Research Center (JSRRC) researched the incident and in November 2017, via an electronic memo, corroborated the incident actually occurring on March 11, 1968, where a munitions team was working in the munitions storage area, the so-called “ammo dump,” and an accidental explosion occurred. The high order detonation of the munitions there killed three USAF personnel there and injured 13 others, according to the JSRRC response. For an unknown reason, the RO’s rating decision of January 2018 said VA was unable to corroborate the stressor of the incident, but the Board finds otherwise, given the information from the Veteran in his lay statement, the records in the Veteran’s personnel file regarding his unit and place of assignment, and his duties as a munitions loader, along with the corroborative information from the JSRRC. The Board notes that while the source of that explosion may not have been due to enemy activity, that a VA PTSD diagnosis can result from credible supporting evidence of an in-service stressor due to fear of hostile military or terrorist activity and a VA psychiatrist or psychologist(or VA contracted psychiatrist or psychologist) confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and that the veteran’s symptoms are related to the claimed stressor. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Pursuant to Clemons, supra, and the requirements of 38 C.F.R. §§ 3.304(f) and 4.125(a), the Veteran’s acquired psychiatric disorder claim must therefore be remanded for a VA examination and opinion for service connection. 2. Entitlement to service connection for cervical spine disability, claimed as cervicothoracic spine pain is remanded. 3. Entitlement to service connection for headaches, claimed as cephalgia, to include as secondary to service-connected lumbar back disability is remanded. 4. Entitlement to an increased evaluation in excess of 40 percent for lumbar spine disability is remanded. The Veteran received a VA examination in December 2017 for his lumbar back, and a separate VA examination that same month for his headaches. The Veteran has not received a VA examination for his cervical spine disability, which he originally claimed as cervicothoracic pain. Based on the Veteran’s lay statements, the possibility exists that the three disabilities are interrelated, and are thus inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The Board notes the lumbar back examination used x-rays of the Veteran’s lumbar back dating from 1977, forty years prior to the date of that examination, which the Board considers to be unsatisfactory given the gap in time and that rating criteria for the back disabilities requires any diagnosis of arthritis to be verified by imaging. The Board thus considers that December 2017 VA examination to be inadequate, and remands for current VA examination(s) to address the lumbar spine, the cervical spine, and the possibly-related headaches disabilities, to include as secondary to existing lumbar or cervical spine disability. For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has chronically worsened the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 2. After the above records search is complete, schedule the Veteran for a VA examination by a VA psychologist or psychiatrist to determine the nature and etiology of the Veteran’s acquired psychiatric disorder(s), to include PTSD and adjustment disorder. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s claimed acquired psychiatric disorder(s) had its onset in service or is otherwise related any to any in-service disease, event, or injury. Attention is invited to the JSRRC-corroborated stressor of the March 1968 explosion at the munitions storage area at RTAFB Korat, Thailand, where the Veteran was assigned as a munitions loader at the time. 3. Schedule the Veteran for a VA examination by an appropriate VA medical professional with the necessary expertise to determine the nature and etiology of the Veteran’s cervical spine disability and headaches, and the current nature and severity of the service-connected lumbar back disability, to include all orthopedic and neurological manifestations. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s claimed cervical spine disability had its onset in service or are otherwise related any to any in-service disease, event, or injury. For the headaches service connection claim, to possibly include as secondary to service-connected disability: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s claimed headaches disability had its onset in service or are otherwise related any to any in-service disease, event, or injury? If not, is it at least as likely as not (a fifty percent probability or greater) that the headaches disability was caused by any of the Veteran’s service-connected disabilities, to include the lumbar back or the cervical spine disability, if so diagnosed and service-connected? If the service-connected disabilities did not cause the headaches, is it at least as likely as not (a fifty percent probability or greater) that the headaches were aggravated by the service-connected disabilities? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the low back and/or left knee conditions by the service-connected disability. A detailed rationale supporting each examiner’s opinions should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative, if applicable, should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.