Citation Nr: 20007130 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-57 636 DATE: January 28, 2020 ORDER Entitlement to an increased rating for posttraumatic stress disorder (PTSD), and entitlement to service connection for erectile dysfunction, right knee disorder, bilateral hip disorder, bilateral ankle disorder, and a left thigh scar has been withdrawn. Entitlement to service connection for bilateral sensorineural hearing loss is denied. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), chronic bronchitis, and pneumonia, as a result of asbestos and environmental exposures is granted. REMANDED Entitlement to a compensable initial rating for residuals status post ventral hernia repair is remanded. Entitlement to a compensable initial rating for a residual scar status post ventral hernia repair is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include headaches, dizziness, and a vestibular disorder, is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a bilateral shoulder disorder is remanded. Entitlement to service connection for a bilateral elbow disorder is remanded. Entitlement to service connection for a bilateral wrist disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a thoracolumbar spine disorder is remanded. FINDINGS OF FACT 1. During his October 2019 hearing testimony, the Veteran’s attorney withdrew the claims for entitlement to an increased rating for PTSD, and entitlement to service connection for erectile dysfunction, right knee disorder, bilateral hip disorder, bilateral ankle disorder, and a left thigh scar. 2. Bilateral sensorineural hearing loss disability per VA standards is not shown by the evidence of record. 3. The Veteran’s diagnosed respiratory disorders are related to active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to an increased rating for PTSD, and entitlement to service connection for erectile dysfunction, right knee disorder, bilateral hip disorder, bilateral ankle disorder, and a left thigh scar by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for entitlement to service connection for bilateral sensorineural hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for entitlement to service connection for respiratory disorders have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2001 to April 2008, and from February 2011 to February 2012. 1. Entitlement to an increased rating for PTSD, and entitlement to service connection for erectile dysfunction, right knee disorder, bilateral hip disorder, bilateral ankle disorder, and a left thigh scar Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. In October 2019, the Veteran’s attorney appeared for a hearing and withdrew these claims from appeal. See also October 2019 Letter. Since the Veteran has withdrawn his appeal regarding the issues of increased rating for PTSD, and entitlement to service connection for erectile dysfunction, right knee disorder, bilateral hip disorder, bilateral ankle disorder, and a left thigh scar pending before the Board, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on these issues, and they are dismissed. 2. Entitlement to service connection for bilateral sensorineural hearing loss Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence must show (1) a present disability, (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process – or relatively close thereto – can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Service connection for certain chronic disorders may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For an enumerated “chronic disease” such as bilateral hearing loss shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). The threshold for normal hearing is from 0 to 20 decibels, and puretone thresholds above 20 decibels may demonstrate hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). However, hearing loss at this level does not equate as being a “disability” for VA purposes. McKinney, 28 Vet. App. at 24-5. Specifically, hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). For the 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 500, 1000, 2000, 3000, or 4000 Hertz, is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz, are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Veteran’s February 2001 VA examination reflected normal hearing for VA rating purposes. In his February 2008 report of medical history, the Veteran indicated that he had no hearing problems, and his February 2008 examination did not note any hearing problems. In-service audiograms consistently reflected normal hearing bilaterally. See, e.g., August 2007 Service Treatment Records. During an April 2015 VA examination, the Veteran had normal hearing in the right ear, and sensorineural hearing loss at the 6000 Hertz range. His Maryland CNC Test speech discrimination score was 96 percent in the right ear and 98 percent in the left ear. The examination does not reflect that the Veteran has sensorineural hearing loss in either ear as neither met the threshold requirements for 38 C.F.R. § 3.385. Palczewski, 21 Vet. App. at 179-80. A May 2012 VA audiologist determined that the Veteran’s hearing was within normal limits other than mild hearing loss at 6000 Hertz, and determined a word recognition score of 92 percent using the W-22 word list. For purposes of determining a hearing disorder, however, VA requires use of the Maryland CNC Test for speech recognition, and an audiometer reflecting hearing loss in the ranges from 500 to 4000 Hertz. 38 C.F.R. § 3.385. The May 2012 VA audiogram does not reflect a hearing loss disorder for VA purposes. More recent VA treatment records reflect that the Veteran has normal hearing. See, e.g., April 2019 and May 2017 VA Treatment Records. The majority of the evidence in the Veteran’s VA treatment records also indicates that the Veteran does not have a hearing loss disability for VA purposes, including the April 2015 VA examination and recent VA audiological examinations. Additionally, the Board notes that a hearing loss disorder can be considered when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. While the May 2012 VA audiologist determined a word recognition score of 92 percent, the Maryland CNC Test was not used to reach those results. The more probative evidence regarding the Veteran’s speech discrimination scores is the April 2015 VA examination that determined Maryland CNC Test speech discrimination score was 96 percent in the right ear and 98 percent in the left ear. In the absence of proof of a current disability, there is no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). After reviewing the entire record, the most probative evidence of record reflects that the Veteran does not have a current diagnosis of sensorineural hearing loss in either ear as defined at 38 C.F.R. § 3.385, and has not met the criteria for such a diagnosis during the pendency of this appeal. McClain, 21 Vet. App. 319, 321 (2007) (holding the requirement of a current disability is satisfied when the claimant has a disability at the time the claim if filed or during the pendency of the appeal). Entitlement to service connection for bilateral sensorineural hearing loss is not warranted. 3. Entitlement to service connection for a respiratory disorder, to include COPD, chronic bronchitis, and pneumonia, as a result of asbestos and environmental exposures The Veteran’s February 2001 entrance examination reflects no respiratory disorders at the time of enlistment, and his February 2001 report of medical history indicating that he had bronchitis as a child. Service treatment records reflect treatment for respiratory problems during service. See, e.g., June 2001, October 2001, and February 2011 Service Treatment Records. During a September 2015 VA examination, the Veteran was diagnosed with COPD, chronic bronchitis, and pneumonia. After examining the Veteran and reviewing the record, the examiner indicated that the Veteran’s respiratory disorders are less likely than not caused by exposure to burn pits, but failed to address whether they were aggravated by such exposure. By contrast, August 2018 VA treatment records and May 2018 private medical records indicate that the Veteran’s respiratory symptomology is correlated to his burn pit exposure. Additionally, the claims file reflects that the Veteran has a history of smoking. See, e.g., September 2015 VA Examination. The Veteran submitted a December 2019 private medical opinion regarding his diagnosed COPD and chronic bronchitis. The private physician reviewed the Veteran’s medical records. The private physician noted the Veteran’s in-service treatment for respiratory problems and discussed causative factors such as cigarette smoke and environmental exposures. Based on a review of the record, the private physician concluded that smoking alone could not be the “stand alone offending agent,” and determined that it is as likely as not that the Veteran’s exposure to asbestos and burn pits “have a strong nexus to his pulmonary complications of COPD and [chronic bronchitis].” During his October 2019 Board hearing, the Veteran provided testimony that he was exposed to burn pits during service in Afghanistan and exposed to asbestos while working in shipyards during service. In a January 2020 statement, his spouse noted that the Veteran has exhibited respiratory symptoms since service, and noted that his in-service work had included asbestos exposure. The Veteran and his spouse are competent to attest to matters of which they have first-hand knowledge, including exposure to environmental factors and symptomology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these statements to be credible and probative of the issue. Based on the evidence of record, including the September 2015 VA examination that did not address whether environmental exposures aggravated the Veteran’s respiratory disorders, the positive nexus opinion in the December 2019 private medical opinion, and the Veteran testimony and spouse statement, it is at least as likely as not that the Veteran’s diagnosed respiratory disorders are related to active duty service. Entitlement to service connection for respiratory disorders is warranted. REASONS FOR REMAND 1. Entitlement to a compensable initial rating for residuals status post ventral hernia repair is remanded. 2. Entitlement to a compensable initial rating for a residual scar status post ventral hernia repair is remanded. The Veteran last underwent VA testing to evaluate the residuals of his status post ventral hernia repair and associated scar in May 2017. In his October 2019 Board testimony, the Veteran indicated that his disorders had worsened. Under these circumstances, additional VA examinations are necessary to determine the current severity of his service-connected disorders. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 3. Entitlement to service connection for residuals of TBI, to include headaches, dizziness, and a vestibular disorder, is remanded. VA is obligated to provide a medical examination when the record contains competent evidence that a claimant has a current disability or symptoms of a current disability, the record indicates that a current disability or symptoms of a current disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). See also 38 C.F.R. § 3.159(c)(4). In this case, treatment records and a VA examination for PTSD reflect that the Veteran likely sustained a TBI during service, and the Veteran has provided credible testimony of an in-service injury that he argues is related to his current TBI residuals. A VA examination is needed to determine if the Veteran has current TBI residuals that are etiologically related to service. 4. Entitlement to service connection for a left knee disorder is remanded. 5. Entitlement to service connection for a bilateral shoulder disorder is remanded. 6. Entitlement to service connection for a bilateral elbow disorder is remanded. 7. Entitlement to service connection for a bilateral wrist disorder is remanded. 8. Entitlement to service connection for a cervical spine disorder is remanded. 9. Entitlement to service connection for a thoracolumbar spine disorder is remanded. VA is obligated to provide a medical examination when the record contains competent evidence that a claimant has a current disability or symptoms of a current disability, the record indicates that a current disability or symptoms of a current disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). See also 38 C.F.R. § 3.159(c)(4). In this case, treatment records reflect treatment for joint and spine pain and the Veteran has provided credible testimony of two in-service injuries that he argues are related to his current joint disorders. A VA examination is needed to determine if any currently diagnosed joint disorders are etiologically related to service. The matters are REMANDED for the following action: 1. Obtain VA treatment records since September 2017 and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the residuals of his service-connected status post ventral hernia repair and associated scar. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, including the impact of the residual symptoms of the status post ventral hernia repair and associated scar on the Veteran’s health. A complete rationale must be provided for the opinions. 3. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any residuals from a diagnosed TBI, to include headaches, dizziness, and a vestibular disorder. The examiner should determine whether the Veteran has any TBI residuals that are at least as likely as not (i.e., probability of 50 percent or greater) etiologically related to an in-service TBI. In answering these questions, the examiner should address the following: • the December 2019 private medical opinion indicating that the Veteran’s physical musculoskeletal degenerative symptoms are consistent with traumatic brain injury; • the Veteran’s credible October 2019 testimony that he had his head slammed in a Humvee door during service; • May 2017 VA examination for PTSD indicating that the Veteran does not have a diagnosed TBI; • March 2015 VA examination for PTSD indicating that the Veteran has a diagnosed TBI; and • March 2012 VA treatment records indicating that the Veteran likely sustained a TBI during service. A complete rationale must be provided for the opinion. 4. Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed left knee, bilateral shoulders, elbows and wrists, cervical spine, and thoracolumbar spine disorders. The examiner should answer the following questions: (a) Does the Veteran currently have any diagnosed left knee, bilateral shoulders, elbows and wrists, cervical spine, and thoracolumbar spine disorders? (b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed disorders began in service, were caused by service, or are otherwise etiologically related to active duty service? (c) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed disorders are residuals of traumatic brain injury? In answering these questions, the examiner should address the following: • the December 2019 private medical opinion indicating that the Veteran’s musculoskeletal symptomology is related to a traumatic brain injury, and the Veteran’s military service makes him more likely to have a thoracolumbar spine disorder; • the Veteran’s credible October 2019 testimony that he fell off a long ladder and had his head slammed in a Humvee door during service; and • service treatment records reflecting treatment for various relevant issues (see, e.g., March 2003 and October 2004 Service Treatment records). A complete rationale must be provided for the opinion. 5. Thereafter, readjudicate the claims. If any benefit on appeal remains denied, furnish the Veteran a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.