Citation Nr: 20032002 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 13-28 785 DATE: May 6, 2020 ORDER Service connection for hearing loss is denied. Service connection for tinnitus is granted. Service connection for a psychiatric disorder is denied. REMANDED Service connection for diabetes mellitus, type II. A total disability rating based on individual unemployability (TDIU).   FINDINGS OF FACT 1. The Veteran did not have hearing loss for VA purposes at any point during the course of the claim. 2. The Veteran’s tinnitus was related to service. 3. The Veteran did not have a diagnosis of a psychiatric disorder at any point during the course of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1988. He died in November 2017. The appellant is his surviving spouse. The claim is on appeal from July 2013 and September 2014 rating decisions. In January 2018, the appellant was substituted to continue the Veteran’s appeals. The case was most recently before the Board in February 2018. At that time, the Board remanded the claims of service connection for diabetes mellitus, hearing loss, tinnitus, and a psychiatric disorder for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). The Board additionally remanded the claim of TDIU, as it was determined that the claim was intertwined with the remanded service claims, and could potentially be a downstream issue. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Analysis 1. Service connection for hearing loss. 2. Service connection for tinnitus. The appellant maintains the Veteran had hearing loss and tinnitus, and it was related to his military service. The Veteran’s service treatment records (STRs) include multiple audiograms over his twenty-year military service. They 1967 entrance examination and 1987 separation examination are normal as to hearing loss testing. In an October 1970 Report of Medical History, in the physician’s summary there was a note of “Deafness, partial.” Service personnel records (SPRs) indicate that the Veteran’s military occupational specialty (MOS) included working as a general clerk from 1968 to 1970, with a year of service in a logistics command unit in Thailand. He had additional duties as a medical records clerk and patient administration specialist. The Veteran was afforded a VA examination in connection with his claims in June 2013. The examiner reported the following pure tone thresholds, in decibels: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 10 10 15 25 30 LEFT 10 10 15 30 35 Speech discrimination tests revealed Maryland CNC scores of 94 percent in both the right and left ear. These findings do not demonstrate hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. The examiner opined that the Veteran’s hearing loss, although not meeting levels for VA compensation purposes, was as likely as not caused by or a result of an event in military service. As rationale, the audiologist stated that he had normal hearing sensitivity at his entrance exam, and mild high frequency loss in his exit exam at the time of military separation. The examiner additionally found that the Veteran had recurrent tinnitus, and that “tinnitus started while working with/around addressograph machines” during service. It was opined that his tinnitus was at least as likely as not a symptom associated with his hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The Board finds that service connection for hearing loss is not warranted. There is no competent medical evidence that the Veteran had a hearing loss disability, as defined by 38 C.F.R. § 3.385, at any point during the appeal period or close in time to the filing of the claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran was, and the appellant is, competent to report the symptoms he observed, such as decreased hearing, he is not competent to report that he has a hearing loss for VA purposes because such a determination requires specific audiometric findings. Jandreu v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, notwithstanding the assertion that he had hearing loss, the audiometric evidence reflects that the Veteran did not have a hearing loss for VA purposes. See Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). In sum, the preponderance of the evidence is against the claim, particularly the current disability element, and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.385. Therefore, service connection for hearing loss is not warranted. However, the Board finds that the Veteran had a current diagnosis of tinnitus during the appeal period, and it was a result of his military service. The June 2013 VA examiner determined that the Veteran had recurrent tinnitus with onset during military due to exposure to noise from addressograph machines. Further, the examiner opined that it was at least as likely as not a symptom of his hearing loss, which hearing loss was determined to be a result of military service, albeit not reaching levels to be a disability for VA purposes. Resolving reasonable doubt in the Veteran’s favor, the Board finds that his tinnitus was related to service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Accordingly, service connection is warranted for tinnitus. 3. Service connection for a psychiatric disorder. The Veteran field a claim for a psychiatric condition secondary to service-connected impairments in May 2011. STRs indicate that at the time of his enlistment examination in November 1967, the Veteran checked “yes” to nervous trouble, and the physician’s summary included a note of “mental breakdown.” It appears he also sought a mental hygiene consultation in March 1968 complaining of an “inability to adjust.” After that point, there is no other indication of a mental health disability or symptoms either during service, or in post-service medical records. A VA examination was scheduled for the Veteran in July 2014; unfortunately, he was not able to attend. However, the examiner proceeded with an ACE examination, which included a review of the claims folder and the Veteran’s electronic medical record. The psychologist found no formally diagnosed mental health disorder, or treatment for a mental health condition in the evidence of record. The examiner further opined that as to whether such a claimed condition could be caused or aggravated by an already service-connected disorder, it was less likely secondary to another disability, as there are no reports of ongoing complaints of a sense of loss or limitation imposed by his service-connected conditions such as degenerative arthritis of the spine. The Board finds service connection is not warranted for a psychiatric disorder, to include secondary to service-connected disabilities. The July 2014 VA medical opinion failed to find a current psychiatric disorder, mental health treatment, or a medical link between any psychiatric condition or a service-connected disability. The Board notes there are no medical opinions of record linking a mental health condition to service, and thus there is also insufficient evidence in support of the nexus element. Moreover, there is no indication that any psychoses from a mental health condition manifested to a compensable degree within one year of service, or that there was a continuity of symptomatology since service. The Board acknowledges the Veteran’s contentions and that he was, and appellant is, competent to testify as to their observations; however, establishing a psychiatric diagnosis such as depression or anxiety that meets DSM criteria is a complex medical question which falls outside the realm of common knowledge of a lay person. See 38 C.F.R. § 4.125; Jandreau, 492 F.3d at 1376-77. Therefore, the lay opinion of the Veteran or the appellant as to his psychiatric condition is afforded no probative evidentiary value, and it is determined the Veteran did not have a psychiatric diagnosis throughout the entire appeal period. See Brammer, 3 Vet. App. at 225. In sum, the preponderance of the evidence is against the claim, particularly the current disability and nexus elements, and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for a psychiatric disorder is not warranted. REASONS FOR REMAND 1. Service connection for diabetes mellitus, type II. The Veteran maintained that he was exposed to herbicides during service. In December 2013 correspondence, he described the duties he executed while stationed at Camp Samae San in Thailand from February 1969 to February 1970. He stated that while his MOS was administrative in nature, his assigned duties for the Logistic Command included working in a message distribution center. The Veteran stated that he “served as a courier and I use to go to U-Tapao Air Force Base every other day, Mondays, Wednesdays, and Fridays, to meet with the courier from Korat, up North, which came by plane and we would exchange documents. This included waiting on the perimeter of the flight line, sometimes for 45 minutes at a time.” He also reported that as part of the courier route he stopped at Camp Vayama to pick up message for “breakdown.” He further stated that there were times at San Samae they were instructed to not return to the sleeping quarters for a couple hours due to spraying the area with herbicides to kill the vegetation. STRs are silent as to treatment or symptoms of diabetes. However, the Veteran sought treatment at the Samae San medical dispensary in December 1968 and January 1970, and his SPRs verify oversea service in Thailand from at least December 1968 to December 1969. In May 2013, the Joint Services Records Research Center (JSRRC) provided a formal finding of an inability to corroborate in-country Vietnam service in efforts to determine exposure to Agent Orange. It was determined that all means were exhausted to verify in-country Vietnam service. However, it does not appear that any similar requests were made as to possible exposure to herbicides due to his verified service in Thailand. The Board finds additional development is warranted as to possible exposure to Agent Orange in Thailand. 2. A TDIU. The appellant contends that the Veteran should have been granted TDIU based upon his service-connected lumbar spine condition. Although the Veteran did not meet the schedular criteria for an award of TDIU per 38 C.F.R. § 4.16 (a), the appellant asserts that the claim should have been submitted for extraschedular consideration on the basis that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected lumbar spine disorder. See Appellant’s March 2020 Correspondence. The Veteran was awarded Social Security Administration (SSA) benefits with a disability onset date of December 2003. The primary diagnosis supporting entitlement was Disorders of Back Disc Herniation, with a secondary diagnosis of Diabetes Mellitus. The Board finds that the issue of TDIU continues to be intertwined with the Veteran’s service connection claim for diabetes mellitus, and as a downstream issue for implementation of the rating assigned for the grant of service connection for tinnitus. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Because a VA Form 21-8940 has not been completed since November 2009, upon remand, a new VA Form 21-8940 with any updated information should be obtained. The matters are REMANDED for the following action: 1. Request that the appellant submit a new VA Form 21-8940, Application for Increased Compensation Based on Unemployability. 2. Contact the appellant and her representative to invite further submission of information indicating that the Veteran was exposed to herbicides during his service in Thailand. Advise that examples of useful information might include written statements from persons who served with her husband, or the appellant’s own recollections of conversations she had with the Veteran prior to his death. 3. Contact the appropriate service department and/or records custodian(s), to request verification of claimed exposure to herbicide agents based on service in Thailand from December 1968 to February 1970. Associate all documents and/or information obtained with the claims file. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morford, 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.