Citation Nr: 21000433 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 19-25 809 DATE: January 5, 2021 ORDER An initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is denied. Service connection for left ear hearing loss is granted. Service connection for right ear hearing loss is denied. Service connection for tinnitus is granted. Service connection for a disability manifested by chest pain is denied. FINDINGS OF FACT 1. The Veteran had active service from June 1971 to November 1974 and from February 1975 to December 1978. 2. PTSD is manifested by subjective complaints of difficulty falling asleep, nightmares, social avoidance; objective findings include depressed mood, anxiety, and chronic sleep impairment. 3. A left ear hearing loss disorder is etiologically related to acoustic trauma sustained in service; right ear hearing loss disorder for VA purposes has not been shown. 4. Tinnitus is etiologically related to acoustic trauma sustained in service. 5. A chronic disability manifested by chest pain and resulting in functional impairment of earning capacity is not shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code (DC) 9411 (2020). 2. A left ear hearing loss disorder was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.303, 3.309 (2020). 3. A right ear hearing loss disorder was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.303, 3.309 (2020). 4. Tinnitus was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.303, 3.309 (2020). 5. A chronic disability manifested by chest pain was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s PTSD is currently rated at 30 percent under DC 9411 of the General Rating Formula for Mental Disorders (General Rating Formula). He argues that his symptoms warrant a rating increase to 50 percent. Under the General Rating Formula, a higher rating is warranted for 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; difficulty in establishing and maintaining effective work and social relationships (50 percent). Turning to the evidence of record, in a March 2016 treatment note the Veteran reported symptoms of poor sleep, irritability, anger, and low mood. Upon examination, he was oriented and exhibited appropriate affect and normal speech. He denied any suicidal or homicidal ideations. In an April 2016 treatment note, the Veteran reported avoiding crowded situations. He noted some slight improvements in mood and irritability. The clinician noted that the Veteran was casually dressed and displayed affect within normal limits. His speech was normal, his thought process was linear, and his insight was fair to limited. He denied any suicidal or homicidal ideations. He further demonstrated appropriate behavior. In a June 2016 treatment note, the Veteran reported avoiding crowds and that he preferred to be fairly isolated. He also indicated that he planned to visit his son while he was on a trip. Upon examination, he was alert and oriented. His affect and mood were within normal limits. His communication, speech, and concentration were normal, and he did not have delusions, hallucinations or suicidal or homicidal ideations. Thought processes and abstract thinking were not impaired. In a September 2016 VA examination, the Veteran stated that he had nightmares and intrusive thoughts. He reported that he avoided crowds and that he preferred more solitary activities. The examiner noted that the Veteran had symptoms of depressed mood, anxiety, and chronic sleep impairment. Upon examination, the clinician found the Veteran to be casually-dressed, well-groomed, and cooperative, with speech within normal limits. The Veteran’s mood was mildly dysphoric, and his affect was appropriate to content. His thought process was logical, and he was well-oriented. He did not have any delusions or hallucinations and he demonstrated no suicidal or homicidal ideations. The examiner opined that PTSD was manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner opined that the psychiatric symptoms were mild but could cause occupational and social impairment. In a November 2018 treatment note, the Veteran reported difficulty sleeping, nightmare and trouble concentrating. Upon examination, he was alert and oriented to person, place and time. His mood was depressed, and his affect was normal. Thought process and content were not impaired, and insight was fair to limited. had no suicidal or homicidal ideations. A May 2019 mental health note reflects that the Veteran had stopped taking Sertraline several months earlier because he did not like how it made him feel and he preferred cognitive and behavioral strategies for dealing with symptoms. He indicated that he had daily anhedonia and sadness, but that he was able to identify negative thought patterns and used behavioral strategies to keep feelings of depression brief. He endorsed chronically feeling that he would be better off dead but clearly denied thoughts of harm to self or others, noting that his faith and son were very strong demotivators. Thought process was linear, and insight and judgment were good. He was neatly dressed and readily engaged with good eye contact. Affect was broad and reactive, and speech was normal and spontaneous. Based on the above evidence, a rating in excess of 30 percent is not be warranted for PTSD. The Veteran experiences depressed mood, anxiety, and sleep disturbance but continues to deny suicidal ideation, remains capable of tending to self-care needs independently, maintains a good relationship with at least one of his children, and attends some social events despite wanting to be alone at times, and getting nervous and anxious around crowds. Moreover, there were no signs of impaired judgment, abstract thinking, panic attacks, incongruent thought and speech, an inability to understand or follow instructions, or inappropriate behavior evidenced in the evidence of record warranting a rating in excess of 30 percent. As such, the appeal for a rating in excess of 30 percent for PTSD, is denied. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing Loss and Tinnitus Hearing loss and tinnitus are recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309 (a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Turning to the evidence, left ear hearing loss and tinnitus were both found in a September 2016 VA examination. Right ear hearing loss was not shown. In this respect, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. September 2016 VA audiology testing results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 20 25 LEFT 80 80 80 85 90 The average pure tone threshold was 20 decibels in the right ear, and 84 decibels in the left ear. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 0 percent in the left ear. As such, hearing loss as defined by VA regulations was shown only in the left ear at that time. In addition to the reports of tinnitus at the September 2016 VA examination, the Veteran has since offered numerous lay statements speaking to his symptomatology. This testimony is competent evidence of the claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that a layperson is capable of observing tinnitus). Accordingly, the first element of service connection a current diagnosis has been met for both left ear hearing loss and tinnitus. Nevertheless, right ear hearing loss has not been shown at any time during the appeal period. When a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, there is no basis on which to grant the claim for service connection for right ear hearing loss. Thus, to that extent, the appeal is denied. As to left ear hearing loss and tinnitus, the evidence supports a finding of in-service acoustic trauma. The Veteran’s military occupational specialty was as a carpenter, and he has stated that he was exposed to loud noise while he was operating various pieces of equipment such as a table saw, band saw shaper, radial arm saw, drill press, and jointer during service. His statements are consistent with the nature of his service and his history of service noise exposure is documented throughout VA treatment records. Specifically, his military personnel records show that he was assigned to work as a carpenter. Further, there is no evidence of record which tends to contradict his statements. As such, the second element of service connection has been met. As to continuity, the Veteran has indicated that he has experienced issues hearing others and tinnitus since separation from service. While there is an absence of complaints or treatment for hearing loss or tinnitus for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of left ear hearing loss and tinnitus since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303 (b). In this respect, the Board notes that the September 2016 VA examiner provided a negative nexus opinion regarding the Veteran’s bilateral hearing loss. However, the Board does not need to reach the weight assignable to the VA opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303 (b) for the “chronic” disease of hearing loss (38 C.F.R. § 3.309 (a)) based on a finding of “continuous” symptoms since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of left ear hearing loss and tinnitus since service; therefore, left ear hearing loss and tinnitus are presumed to have been incurred in service and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of left ear hearing loss and tinnitus since service separation, all other service connection theories are rendered moot. Chest Pain The Veteran asserts that he has a disability manifested by chest pain that is related to service, to include as due to asbestos exposure. Treatment notes document complaints of chest pain for decades prior that had gotten worse over time, as well as complaints of chronic cough and dyspnea. An October 2010 VA treatment note states that he reported that the chest pain had been present for 40 years. Chest X-rays in 2010 and 2011 revealed a small nodular density that was non-specific and may have been within lung or bone. However, multiple pulmonary work-ups are of record, and chest X-rays and pulmonary function tests have been consistently normal. No cardiac disorder has been identified. VA treatment notes document an active problem of Atypical Chest Pain. No diagnosis of a chronic disabling disorder manifested by chest pain has been made. Pain alone may be a disability without evidence of functional impairment that affects earning capacity. Wait v. Wilkie, No. 18-4349 (Aug. 26, 2020); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, while the evidence reflects that the Veteran experiences chest pain with heavy exertion, it does not establish that the pain results in chronic disability with functional impairment of earning capacity as required. The Veteran, through his representative, has requested development of his appeal for exposure to asbestos in service. He has contended that he had asbestos exposure in service from carpentry duties, including ship-building. The Veteran is competent to describe symptoms as this requires only personal knowledge that comes to him through his senses and appreciates that the Veteran has a long-standing history of chest pain. Nevertheless, further development of whether such exposure occurred is not needed in the absence of a current disability for which service connection may be granted. Without a currently diagnosed chronic disabling disorder associated with the chest pains, there is no basis for service connection. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). K. M. Schaefer Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.