Citation Nr: 20021332 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-28 624 DATE: March 25, 2020 ORDER Entitlement to a higher initial disability rating of 50 percent for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for bilateral shin splints is remanded. Entitlement to service connection for chronic mycotic infection of the left foot is remanded. Entitlement to service connection for neurogenic erectile dysfunction/loss of use of a reproductive organ is remanded. Entitlement to service connection for porphyria cutanea tarda of the neck and chest area is remanded. Entitlement to service connection for right sciatic radicular pain weakness of right leg as secondary to low back pain with spinal stenosis is remanded. Entitlement to service connection for degenerative arthritis, spinal stenosis, and scoliosis of the thoracolumbar spine is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s PTSD manifested by symptoms including anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships, intrusive thoughts, nightmares, night terrors, and avoidance; these symptoms more nearly approximate the degree of occupational and social impairment contemplated by a 50 percent schedular rating. 2. Bilateral hearing loss manifested more than one year after separation and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 50 percent, but no higher, for the service-connected PTSD are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served during the Vietnam era on active duty from November 1965 to November 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a December 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia (RO). Increased Rating General rating criteria Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. 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 civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.2, 4.3, 4.7, 4.10. For an initial rating claim, consideration will be given to “staged ratings” since service connection was made effective. See Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings demonstrating distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary. Id. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating shall be assigned. 38 C.F.R. § 4.7. General Rating Formula for Mental Disorders The Veteran’s PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula For Mental Disorders, to include PTSD, a 30 percent evaluation is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; 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. A 100 percent evaluation is assignable where there is 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 of minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. An evaluation shall be assigned based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126 (2019). Furthermore, when evaluating the level of disability arising 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. It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Thus, the Board will consider whether “the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code,” and, if so, the “equivalent rating will be assigned.” Id. 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) The Veteran contends that the assigned rating for his service-connected PTSD does not adequately reflect the severity of his disability. Turning to the evidence of record, the Veteran asserted in a September 2019 statement that the severity of his symptoms warrants a permanent and total 100 percent disability rating for PTSD. See September 2019 VA Form 9. A private Disability Benefits Questionnaire (DBQ) from a psychologist, Dr. W.A., was received in September 2019. The evaluation was dated August 2018, although review of the Veteran’s claims file does not show that it was previously associated with the record. Dr. W.A. identified PTSD-associated symptoms of anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The Veteran reported having an “even-keeled” mood most of the time and that he “attempts to keep control” of himself most of the time. The Veteran reported feelings of anhedonia, insomnia, concentration difficulties, fatigue, and loss of memory. The Veteran denied suicidal or homicidal ideation. Dr. W.A. noted a history of road rage, consisting of verbal outbursts and gesturing. Dr. W.A. noted that the Veteran was easily engaged in the evaluation aside from resistance in discussion of his military experiences. Dr. W.A. noted that the Veteran exhibited normal impulse control, manner and content of speech, form and content of thought. The Veteran’s affect was noted as normal, stable, and appropriate for the discussion at all times. Dr. W.A. noted that individuals with similar profiles as the Veteran respond to stress with somatic complaints; experience significant emotional concerns to include depression, anxiety, fear, and uneasiness; function at a reduced level of efficiency; are socially introverted; and have difficulty expressing their needs and opinions. Dr. W.A. strongly recommended that the Veteran seek individual counseling, group therapy, and psychiatric treatment to address his symptoms, as well as couples counseling to address his relationship with his spouse. The Veteran was afforded a PTSD VA examination in November 2018. The Veteran was found to have the following symptoms associated with PTSD: suspiciousness, chronic sleep impairment, intrusive thoughts, nightmares, night terrors, and avoidance. The Veteran reported being married for 49 years and maintaining occasional contact with his 12 siblings. The Veteran reported issues with sleep to include yelling, kicking, and fighting in his sleep; nightmares a few times a week; and trouble falling and staying asleep. The Veteran reported avoiding crowds, being unable to relax in public, and being suspicious of others. The Veteran reported being uncomfortable around young people because they have “funny moods”. The Veteran denied engaging in Veteran-related activities because he does not want to be “around it”. The Veteran reported memory impairments of being unable to recall where he puts things and forgetting names and appointments. The Veteran reported a previous arrest for traffic tickets. The Veteran described his demeanor as calm and endorsed being irritable and agitated when he is asked questions. The Veteran’s spouse reported that he yells often and becomes angry in traffic and in the grocery store. The Veteran denied throwing things, punching things, or punching walls. The Veteran denied being aggressive to others, having panic attacks, or having suicidal or homicidal ideation. Regarding his occupational history, the Veteran reported past employment as a factory worker, salesman, and janitor, and current employment in security. The Veteran denied problems at work because he “works alone”. The examiner noted that the Veteran arrived on time for the session and was accompanied by his wife. The Veteran was adequately dressed and groomed and speech was normal. The examiner noted no deficits in his attention or concentration. The Veteran displayed appropriate affect, with no evidence of thought disorder. After consideration of the evidence of record, the Board finds that the assignment of a 50 percent rating is appropriate for the period on appeal. The evidence of record indicates that the Veteran experienced symptoms of anxiety, suspiciousness, chronic sleep impairment, nightmares, intrusive thoughts, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and avoidance during this period. Regarding difficulty establishing and maintaining effective work and social relationships, the Veteran describes working alone, difficulty interacting with people, and having limited contact with his family. The Veteran’s symptoms have manifested as road rage and yelling at his wife. Dr. W.A. advised that the Veteran seek counseling to address his relationship with his wife. The Veteran’s wife reported that the Veteran yells frequently. The Board does not, however, find the Veteran’s PTSD causes impairment consistent with a 70 percent rating. The August 2018 private DBQ and the November 2018 VA examination report described his disability using the criteria for 30 percent and 50 percent ratings. The Board finds these opinions highly probative as the providers are experts trained in evaluating mental health problems. The Veteran denied suicidal and homicidal thoughts during the period on appeal. Moreover, the evidence does not show symptoms analogous to the impairment caused by near continuous panic; difficulty in understanding complex commands; impaired judgment; or impaired abstract thinking. The Veteran was routinely observed with normal thought processes, speech, hygiene, appearance, and full orientation. He always behaved appropriately with medical providers. He is able to manage his own finances. While the Veteran does have anger, he does not routinely engage in periods of violence. He does have difficulty establishing and maintaining effective relationships, but still retains the ability to maintain such relationships. Given the Veteran’s overall level of functioning, the Board finds his PTSD warrants a 50 percent, but no higher. The Veteran is competent to report on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). While lay persons are competent to provide opinions on some medical issues, determining the severity of a complex condition such as a psychiatric condition falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran’s impairment. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Competent evidence concerning the nature and extent of the Veteran’s PTSD was provided by the private psychologist and the VA examiner who interviewed and evaluated him during the relevant period on appeal. The medical findings as provided in the August 2018 DBQ and the November 2018 examination report directly address the criteria under which this disability is evaluated. Thus, the lay evidence is outweighed by the competent medical evidence that evaluates the true extent of the disability. The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list but are examples of the types and severity of symptoms that indicate a certain level of disability. The Board believes that based on the overall record, including the Veteran’s lay statements, private DBQ, and the VA examination report, the frequency, duration, and severity of his PTSD is most consistent with a 50 percent disability rating during this period. 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). 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, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 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). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means 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. Service connection for a recognized chronic disease 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). 2. Entitlement to service connection for bilateral hearing loss A private consultation and examination report from a chiropractor, Dr. M.T., was received in September 2018. Dr. M.T. administered a hearing test in which the Veteran’s hearing was tested by introduction of “normal day to day noise (air conditioner, computer, and soft background music)” to test the Veteran’s functioning under normal day to day conditions. Dr. M.T. conducted a test using spoken and whispered words and opined that the Veteran has “hearing loss under normal conditions of 30 % of the right ear and 30 % of the left ear.” Dr. M.T. indicated that the Veteran suffered from “progressive bilateral hearing loss.” The Veteran was afforded a VA examination in November 2018. His pure tone thresholds, in decibels, were measured as follows: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 35 40 40 35 35 37.5 LEFT 25 30 35 35 35 33.75 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. The Veteran reported difficulty hearing his wife. No civilian noise exposure was noted. The examiner diagnosed bilateral sensorineural hearing loss. The examiner noted that the Veteran was engaged in combat in Vietnam and that his military occupational specialty (MOS) carries a high probability for hazardous noise exposure. The examiner opined that the Veteran’s currently diagnosed bilateral hearing loss is not related to service, as no significant threshold shifts were noted while in service. The examiner further explained that the configuration and degree of the Veteran’s hearing loss is not consistent with a noise induced hearing loss that began over 50 years ago. Beginning with direct service connection, the Veteran currently has hearing loss for VA purposes, and therefore a current disability has been established and the first element is met. 38 C.F.R. § 3.385. Concerning the second element, the Veteran has alleged that his hearing loss is due to noise exposure while he was serving in Vietnam, to include artillery fire, machine guns, and other weapons fire. See September 2018 Report from Dr. M.T. The Veteran’s MOS was that of infantry direct fire crewman. The November 2018 VA examiner noted the high probability of noise exposure for the Veteran’s MOS. Accordingly, an in-service event has been established. Nevertheless, the preponderance of the evidence is against the finding of a nexus between the Veteran’s current hearing loss and his reported in-service events. While competent to report lay observable symptoms, such as difficulty hearing, the Veteran is not competent to state an opinion as to whether his hearing loss is causally related to noise exposure occurring decades earlier in service, as to do so requires expertise in the field of audiology. Jandreau, 492 F.3d 1372. The Veteran’s service records do not show any complaints of hearing loss. The Veteran was first diagnosed with hearing loss in November 2018. The Veteran did not file an application for service connection for bilateral hearing loss until September 2018, many years after his separation from active service. As the record is silent for complaints of hearing loss prior to 2018, the evidence of record does not establish that the Veteran’s reported symptoms have persisted since service. The Veteran had a VA examination in November 2018 and was diagnosed with bilateral sensorineural hearing loss. The examiner opined that the Veteran’s hearing loss was less likely than not related to service, noting that the Veteran’s hearing was normal at enlistment and separation and that the Veteran had no significant threshold shift during service. Crucially, the examiner specifically found that the configuration and degree of the Veteran’s hearing loss is not consistent with a noise induced hearing loss that began over 50 years ago. The Board finds this opinion to be well reasoned and entitled to significant weight, as it is based on examination of the Veteran, review of the claims file, and sound medical principles. Thus, the preponderance of the evidence is against a finding of a nexus between the Veteran’s bilateral hearing loss and his active duty service. As the third element is not met, service connection for bilateral hearing loss on a direct basis is not warranted in this case. The Board acknowledges the September 2018 private hearing examination report from Dr. M.T. However, the Board finds that this evaluation is entitled to no probative value, as it does not meet the requirements for an examination for hearing impairment for VA purposes under 38 C.F.R. § 4.85(a). In addition, Dr. M.T. is a chiropractor and the consultation and examination report does not indicate that she possesses the necessary education, training, and expertise to provide the requested opinion. Turning to the presumption in favor of chronic diseases and continuity of symptomatology, the Veteran has been diagnosed with bilateral sensorineural hearing loss, which is encompassed by the broader term “organic diseases of the nervous system,” and is therefore a recognized chronic disease for VA purposes. 38 C.F.R. § 3.309(a). Bilateral hearing loss was not clinically shown to a compensable degree within one year following the Veteran’s discharge from service. There is also no persuasive lay evidence that bilateral hearing loss manifested to a compensable degree within one year following the Veteran’s discharge from service, or that hearing loss was noted in service and continued ever since service. There is no definitive statement from the Veteran that his hearing loss began in service and persisted in the years after service. Therefore, service connection for bilateral hearing loss is not warranted on a presumptive or continuity of symptomatology basis. 38 C.F.R. §§ 3.307, 3.309. REASONS FOR REMAND 1. Entitlement to service connection for bilateral shin splints is remanded. 2. Entitlement to service connection for chronic mycotic infection of the left foot is remanded. 3. Entitlement to service connection for neurogenic erectile dysfunction/loss of use of a reproductive organ is remanded. 4. Entitlement to service connection for porphyria cutanea tarda of the neck and chest area is remanded. 5. Entitlement to service connection for right sciatic radicular pain weakness of right leg as secondary to low back pain with spinal stenosis is remanded. 6. Entitlement to service connection for degenerative arthritis, spinal stenosis, and scoliosis of the thoracolumbar spine is remanded. The Veteran has submitted a September 2018 private consultation and examination report from Dr. M.T. Dr. M.T. references the Veteran’s documented medical history and previous diagnoses of erectile dysfunction, chronic mycotic infection of the left foot, degenerative joint disease of the lumbar spine with probable spinal stenosis, right sciatic radicular pain, and bilateral shin splints. At a January 2019 VA examination, the Veteran reported that he had been evaluated by several private medical providers, to include Phoebe Medical Center. As the clinical records cited by Dr. M.T. and the private medical records reported by the Veteran have not been associated with the record, a remand is needed to obtain these records. In the September 2018 private report, Dr. M.T. diagnosed the Veteran with porphyria cutanea tarda (PCT) upon visual examination and opined that the Veteran’s PCT is related to exposure to herbicide agents. While porphyria cutanea tarda is a disease subject to presumptive service connection under 38 C.F.R. § 3.309(e), there is not enough medical evidence in the record for the Board to make a determination on whether this disorder is linked to active duty service. Therefore, a remand for a VA examination is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any relevant private treatment records, to include the treatment records from Phoebe Medical Center and any underlying records referred to in the September 2018 private consultation report from Dr. M.T. Make two requests for any identified authorized records, unless it is clear after the first request that a second request would be futile. 2. After the development above is complete, schedule the Veteran for a VA dermatology examination. After reviewing the claims file, the examiner is asked to confirm whether the Veteran has a current diagnosis of porphyria cutanea tarda. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Bynum, 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.