Citation Nr: 21000118 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-57 315 DATE: January 4, 2021 ORDER The claim for service connection for bilateral hearing loss is denied. The claim for service connection for tinnitus is denied. The claim for a higher initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted throughout the period on appeal. REMANDED The claim for service connection for ischemic heart disease due to Agent Orange exposure is remanded. The claim for service connection for a disability manifested by three aneurysms is remanded. The claim for an initial compensable disability rating for residuals, prostate cancer is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that bilateral hearing loss began during active service or is otherwise related to an in-service injury or disease, including in-service noise exposure. 2. The preponderance of the evidence is against finding that tinnitus began during active service or is otherwise related to an in-service injury or disease, including in-service noise exposure. 3. Throughout the claim, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximate occupational and social impairment with deficiencies in most areas without total social impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for an initial disability rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to September 1971. He provided testimony during a hearing before the undersigned in July 2019. A transcript has been associated with the claims file. The Board notes that the Veteran’s representative withdrew the issue regarding service connection for tinnitus in an October 2017 letter. However, the Veteran continued to pursue that claim thereafter, even providing testimony at the Board hearing regarding that issue. As such, that issue is considered as currently on appeal before the Board and will be adjudicated herein. In October 2019, the Veteran submitted new evidence with a waiver of agency of original jurisdiction (AOJ) review. That evidence has been associated with the file and considered herein. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he incurred bilateral hearing loss as a result of military noise exposure. Unfortunately, the Board does not find that the evidence supports such a finding. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss, and evidence shows that the reported in-service noise exposure likely occurred, the preponderance of the evidence weighs against finding that his hearing loss began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records are negative or any complaints, treatment, or diagnosis of hearing loss during service or upon discharge examination. In addition, a June 1971 audiogram performed during separation examination demonstrated hearing within normal limits. The Board notes that there is no medical or lay evidence that tinnitus symptoms began within one year of active duty service discharge. As such, service connection under 38 C.F.R. § 3.307 is not warranted. Private treatment records show the Veteran was not diagnosed with hearing loss until May 2011, more than four decades after his separation from service. While the Veteran is competent to report having experienced symptoms of decreased hearing acuity at some frequency since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of hearing loss, particularly at the level required for a hearing loss diagnosis under VA regulation. The issue is medically complex, as it requires knowledge of the interaction between multiple systems in the body and the interpretation of complicated diagnostic medical testing, and the Veteran has not been shown to possess such knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, an August 2013 VA examiner opined that although the Veteran experienced in-service noise exposure and denied post-service exposure, his bilateral hearing loss is not at least as likely as not related to an in-service injury, event, or disease. The examiner noted the fact that his hearing was within normal limits upon separation and that there was not a significant threshold shift between the enlistment and separation examinations as support for the negative etiology opinion. The examiner’s opinion is probative, because it is based on an accurate medical history and review of the evidence of record and it provides an explanation that contains clear conclusions with supporting information. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the Veteran’s private physician opined in July 2014 that the in-service noise exposure caused the deterioration of his hearing and that his current hearing loss is mostly likely due to the in-service noise exposure. However, the examiner did not provide a rationale for this opinion. Further, unlike the VA examiner, the private physician did not have the benefit of reviewing the claim file, which demonstrates that the Veteran had hearing within normal limits upon separation without a significant shift in hearing acuity between enlistment and separation. Instead, the opinion appears to be based on the Veteran’s self-reported medical history, which did not cover the Veteran’s audiogram results in the enlistment and separation examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more probative weight to the 2013 VA examiner’s opinion. The Veteran certainly believes his disability is related to in-service noise exposure. However, he is not competent to provide a nexus opinion. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, the anatomical relationships, and the performance and interpretation of complicated diagnostic medical testing. The record does not demonstrate that this Veteran has the medical training or expertise to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the 2013 VA examiner’s opinion, which is against the claim. Given the lack of medical evidence in support of the claim, the evidence is against a finding of a nexus between the Veteran’s current hearing loss and in-service noise exposure. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for tinnitus The Veteran contends that he incurred tinnitus a result of military noise exposure. Unfortunately, the Board does not find that the evidence supports such a finding. The Board concludes that, while the Veteran reported current tinnitus symptoms during the Board hearing, and evidence shows that the reported in-service noise exposure likely occurred, the preponderance of the evidence weighs against finding that the his current tinnitus began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records are negative for any complaints, treatment, or diagnosis of tinnitus during service or upon discharge examination. The 1971 separation examination report noted normal ears and did not note any symptoms of tinnitus. During the Board hearing, the Veteran reported that he did not experience tinnitus symptoms during service. While he could not remember when such symptoms began, it was at some point after service discharge. The Board notes that there is no medical or lay evidence that tinnitus symptoms began within one year of active duty service discharge. As such, service connection under 38 C.F.R. § 3.307 is not warranted. The first evidence of tinnitus in the record is his 2012 claim for service connection benefits more than four decades after service discharge. The medical evidence of record throughout the claim is negative for treatment or diagnosis of tinnitus at any point. Moreover, the Veteran denied tinnitus symptoms during the August 2013 VA examination. As such, the examiner did not provide an etiology opinion. The Board acknowledges that the Veteran reported during his hearing that tinnitus began in the years following service. However, there is no evidence corroborating this report and, in fact, this report is contradicted by the evidence of record demonstrating complaints, treatment, or diagnosis of tinnitus before the 2019 hearing and his denial of tinnitus for over four decades after discharge. Therefore, while the Veteran reported current tinnitus symptoms during the 2019 hearing, there is no competent and credible evidence that raises the possibility of tinnitus having onset during or as a result of military service, to include in-service noise exposure. Given the lack of medical evidence in support of the claim and the lack of continuous reports of tinnitus from the Veteran, the evidence is against a finding of a nexus between the Veteran’s current reports of tinnitus and in-service noise exposure. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 3. Entitlement to a higher initial rating in excess of 30 percent for PTSD Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran contends that his current service-connected PTSD is worse than rated. Specifically, during the Board hearing, the Veteran’s representative stated that the Veteran is seeking a 70 percent disability rating, at a minimum. As noted above, his disability is rated as 30 percent disabling throughout the period on appeal. Acquired psychiatric disorders such as PTSD are evaluated under (Diagnostic Code) DC 9411 by applying the criteria found under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. Under 38 C.F.R. § 4.130, DC 9411, a 70 percent rating 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 ideations; obsessional rituals that 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); inability to establish and maintain effective relationships. Id. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular evaluation contemplates 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); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. In assessing the severity of the Veteran’s PTSD, the Board has reviewed both private and VA treatment and examinations. The medical treatment records confirm and support the findings of the private and VA examiners without demonstrating symptomatology worse than found upon examination. Based on the evidence of record, the Board concludes that a 70 percent disability for PTSD, but no higher, is warranted throughout the entire appellate period. The medical and lay evidence of record indicate that symptoms of PTSD included sleep impairment, anxiety, depressed mood, decreased motivation, diminished interest in activities, difficulty concentrating, intrusive thoughts/flashbacks, hypervigilance, difficulty obtaining and maintaining effective relationships, isolative behavior, mild memory impairment, difficulty adapting to stressful situations, and decreased socialization throughout the entire appellate period. These symptoms more approximate those listed in the criteria for a 70 percent rating. Regarding social impairment, the Veteran consistently endorsed feelings of isolation and detachment from others, diminished interest in activities, and impaired concentration. The Veteran described how he preferred to be alone and sought out activities where he did not have to interact with others. A February 2013 private examiner noted the Veteran’s two divorces, his numbness and distancing from family relationships, and his tendency to self-isolate, particularly from large or noisy crowds. An August 2013 VA examiner, who focused largely on the issue of service connection for PTSD, verified the two divorces and noted that the Veteran was estranged from his daughter. A 2019 VA examiner stated that the Veteran may experience deficits in social functioning and completing complex and sustained tasks in crowded situations and, similarly, will have social and adaptive skills deficits during episodes of elevated stress. Regarding occupational impairment, the Veteran was unemployed throughout the claim, as he retired from his last position in 2007, about five years before the claim was filed. However, throughout the claim the Veteran has reported, and the VA examiners found significant the Veteran’s lack of motivation, desire to isolate, nervousness/anxiety, mild memory loss, and difficulty concentrating when commenting on his occupational functioning. Moreover, the 2019 private examiner found that eventually, with psychological care and appropriate medications, the Veteran would be capable of limited low-stress work placement in a supported/sheltered supervised work setting and that even in such limited restricted work conditions, he would be an unreliable and unproductive employee due to his psychological disabilities. The Board acknowledges that the VA examiners concluded that the Veteran’s PTSD symptoms resulted in, at worst, reduced reliability and productivity; however, considering the complete record, including the Veteran’s symptoms reported during psychiatric treatment, and given the level of social and occupational impairment reported during the VA and private examinations, the Board finds that the Veteran’s level of impairment due to PTSD symptoms is more severe than summarized by the VA examiner. Based on the foregoing, the Board finds that the Veteran’s PTSD more nearly approximated deficiencies in most areas, including mood and social and occupational functioning. Therefore, a 70 percent disability rating is warranted throughout this appeal. Regarding the next highest disability rating, a 100 percent rating, throughout the period on appeal, the Board finds that there have been few reports of the symptoms listed in the criteria for a 100 percent rating. The evidence, including the private and VA examinations and treatment records, indicates that his speech tone and rate have consistently been clear or within normal limits, albeit sometimes forced, his thought process and content logical and goal-oriented, and his judgment, insight, and impulse control unimpaired. While the private evaluations have noted some memory problems, they were described as mild. The examiners also noted that although the Veteran was sensitive to stress, there was no impulsiveness. Additionally, the Board finds that there is insufficient evidence to show that a 100 percent rating is warranted as total overall social impairment has not been demonstrated. Mauerhan, 16 Vet. App. at 436. Despite having been divorced twice and having a strained relationship at times with family members, the Veteran reported maintaining contact with his kids and grandkids as well as participation in faith-based activities. In addition, during the 2019 VA examination, he reported having friends and neighbors in the area. During the Board hearing, the Veteran reported having a “best friend”, who his representative called his “significant other,” and that they did everything together. Throughout this period on appeal, the Veteran has been found to be able to perform all activities of daily living, maintain minimum personal hygiene, and handle his financial affairs. He has consistently denied hallucinations or delusions throughout the appellate period. Moreover, although he has more recently reported fleeting suicidal ideation during the 2019 VA examination, he has denied intent or plans, has denied homicidal ideation and has not been demonstrated with grossly inappropriate behavior. Although some memory impairment has been reported, it has been described as mild. There has never been evidence of disorientation to time or place or memory loss for names of close relatives, his own occupation, or his own name. Moreover, at no time has the Veteran reported or the medical evidence demonstrated the other severe symptoms listed in the rating criteria, such as obsessional rituals which interfere with routine activities, impaired impulse control, spatial disorientation, or speech that is intermittently illogical, obscure, or irrelevant. Finally, the Board finds significant the fact that the Veteran has not reported that he is totally impaired due to his PTSD symptoms. Given the evidence above, the Board concludes that the Veteran’s symptoms do not more nearly approximate a 100 percent schedular disability rating and have not at any time during the appellate period. 38 C.F.R. §§ 4.7, 4.21, 4.73, DC 9411. REASONS FOR REMAND 1. Entitlement to service connection for ischemic heart disease or coronary artery disease 2. Entitlement to service connection for a disability manifested by three aneurysms Upon VA examination in July 2013, the examiner found insufficient evidence of ischemic heart disease or coronary artery disease. However, in a January 2014 private treatment record documented a diagnosis of coronary artery disease. Therefore, as it appears that the VAX may no longer reflect the current status of the Veteran’s health, the claim must be remanded in order to provide a new VA examination to determine whether the Veteran has a current diagnosis of a heart disease, to include ischemic heart disease/coronary artery disease and, if so whether it is etiologically related to military service. In addition, the Veteran has asserted that his aneurysms are proximately related to his heart disabilities and the VA examination may result in information pertinent to that issue on appeal. As such, both issues must be remanded and adjudicated together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). 3. Entitlement to an initial compensable disability for residuals, prostate cancer The Veteran reports that his disability is worse than currently rated and that he has experienced related urinary symptoms. His last VA examination in July 2013 did not address such symptomatology. As the record indicates that the disability may have worsened since the last VA examination, the Board finds that a new VA examination is necessary to assess the current severity of the disability. See Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)) (a veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of his disability). All outstanding records of ongoing VA treatment must be obtained upon remand. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to assess the nature and etiology of any heart disability or disability manifested by aneurysms present at any time during the course of the appeal. The examiner must review the claims file. The examiner must specifically opine whether the Veteran has or has had a heart disability, to include ischemic heart disease or coronary artery disease since the appeal was received in 2012. All disabilities must be listed. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: If a heart disability other than ischemic heart disease/coronary artery disease is found, is that disability at least as likely as not related to service, including herbicide exposure. If a heart disability is diagnosed, the examiner must opine whether a disability manifested by aneurysms, to include the three aneurysms of record, is at least as likely as not proximately due to that heart disability? Is the aneurysms disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a heart disability? The examiner is advised that a negative opinion cannot be based solely on the fact that either is not on the list of diseases that are presumptively associated with exposure to herbicide agents. Provide a rationale to support the opinion(s). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of prostate cancer disability. 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. The examiner must specifically address and evaluate the reported urinary symptoms the Veteran attributes to this disability. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. B., 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.