Citation Nr: 21002229 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 20-27 207 DATE: January 13, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss is denied. REMANDED Entitlement to service connection for head injury, now claimed as traumatic brain injury, is remanded. Entitlement to service connection for left eye condition is remanded. Entitlement to service connection for headaches associated with head injury now claimed as traumatic brain injury is remanded. FINDINGS OF FACT 1. The evidence of record does not reflect a diagnosis of PTSD or any other psychiatric condition during the period on appeal. 2. The Veteran’s bilateral hearing loss was manifested, at worst, by Level IV hearing in the right ear and Level III hearing in the left ear. CONCLUSIONS OF LAW 1. The criteria for an entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.303. 2. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss were not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1955 to November 1957. These matters come before the Board of Veterans’ Appeals on appeal from July and October 2016 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The Veteran’s representative recently submitted an Appellate Brief, disputing the adequacy of the February 2020 VA hearing examination—specifically, that it fails to adequately portray the severity of his condition due to its having been conducted in the “sterile quiet of an audiology booth that fails to reflect the severity of his condition in the aspect of normal, daily life.” See December 2020 Appellate Brief. However, a presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.”); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (applying the presumption of regularity to VA examination). Clear evidence is required to rebut the presumption of regularity. Miley, 366 F.3d at 1347. There was no indication that any of the findings were biased, inaccurate, or incomplete in any way and the examiner conducted a thorough in-person examination. The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veterans Health Administration (VHA) in developing criteria that contemplated situations in which a veteran’s hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). At no point in the period on appeal have the Veteran’s audiometric results warrant the use of Table VIa. Accordingly, as there is not “clear evidence” of irregularity and the examination was done in accordance with VA’s usual practice, the Board finds that the presumption of regularity has not been rebutted. Thus, the Board finds that there is no duty to provide another VA examination or medical opinion. Neither the Veteran nor his representative raised any issues with the duty to notify or duty to assist, or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. The Board has thoroughly reviewed all the evidence in the Veteran’s VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the claimant to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. 1. Entitlement to service connection for PTSD is denied. The Veteran contends that he suffers from PTSD since incurring a head injury in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). Upon review of the evidence of record, the Board finds that service connection for PTSD is not warranted. In doing so, the Board notes that there is no competent evidence that the Veteran currently suffers from PTSD or from any other psychiatric disorder. The Veteran’s recent treatment records reflect negative screenings for depression and PTSD, and those records are silent for a diagnosis of PTSD or any mental health condition. As such, the Veteran has no current disability for which service connection may be granted. The presence of a disability at any time during the claim process can justify a grant of service connection, even when the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress specifically has limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a current disability. Here, there is simply no indication in the record that the Veteran has a current diagnosis of PTSD, or that he has had any psychiatric disability at any time during the appeal period. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. In reviewing the Veteran’s claim for PTSD, the Board took this into consideration; however, there is no evidence of record to suggest any current mental health disorder during the course of the Veteran’s appeal or in close proximity to his filing of a claim. The Veteran has not been provided with any VA examination in this case. In determining whether an examination is warranted, the framework does not require that the Veteran have a current diagnosis, but instead that there be competent evidence of persistent symptoms of a disability. In this case, beyond providing the bare contention of suffering from depression as related to an in-service head injury, the Veteran has not described any symptoms with sufficient particularity for the Board to determine what symptoms of a disability he may have. More importantly, there is no evidence of symptoms since his treatment records consistently show negative finding for depression or PTSD. Absent such evidence, a VA examination is not required. Taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran’s claim of entitlement to service connection for PTSD. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claims. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Thus, the claim is denied. 2. Entitlement to a rating in excess of 10 percent for service-connected bilateral hearing loss is denied. The Veteran contends that his hearing condition more closely reflects the severity required for a higher disability rating. The Veteran is currently in receipt of a 10 percent under Diagnostic Code 6100 throughout the appeal period. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of disability ratings for hearing impairment are to be derived by mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In cases in which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Diagnostic Code 6100 provides two tables for rating purposes (Table VI and Table VIA) used to determine a Roman numeral designation (I through XI) for the level of hearing impairment in each ear. See 38 C.F.R. § 4.85. Table VI is used by default. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for the level of hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and then that numeral will then be evaluated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b). Table VIA is also utilized when the audiologist certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85 (c). Table VII is then used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The Veteran first underwent a VA examination in April 2016. His reported puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average Right 30 55 65 70 55 Left 40 70 75 70 63.75 Speech discrimination score (using Maryland CNC word list) for the left ear was 90 percent, and 80 percent for the right ear. He was diagnosed with sensorineural hearing loss for both ears. Applying the results to Table VI shows that the Veteran had Level IV impairment for the right ear, and Level III for the left ear. Upon mechanical application of these values into Table VII, the result was a 10 percent rating. Because these results do not demonstrate an exceptional pattern of hearing impairment in the left or right ear, the Board need not consider whether utilizing Table VIA would produce more favorable results. See 38 C.F.R. § 4.86 (a) and (b). The Veteran underwent another VA examination in February 2019. However, this examination did not include speech discrimination score (using Maryland CNC word list), and for that reason, RO found this examination inadequate for rating purposes (see June 2020 Supplemental Statement of the Case). In February 2020, the Veteran underwent yet another VA examination. His reported puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average Right 35 50 70 70 56.25 Left 45 70 70 65 62.50 Speech discrimination score (using Maryland CNC word list) for the left ear was 84 percent, and 96 percent for the right ear. He was diagnosed with sensorineural hearing loss for both ears. Applying the results to Table VI shows that the Veteran had Level I impairment for the right ear, and Level III for the left ear. Upon mechanical application of these values into Table VII, the result was a 0 percent rating. Because these results do not demonstrate an exceptional pattern of hearing impairment in the left or right ear, the Board need not consider whether utilizing Table VIA would produce more favorable results. See 38 C.F.R. § 4.86 (a) and (b). While the Board is cognizant of the test results noted in the most recent VA examination (ie. suggestive of 0 percent rating), reducing the rating would be inconsistent with the Board’s duty to reconcile varying examination reports into a consistent picture, with a goal of stability in disability ratings, and with resolution of reasonable doubt in the Veteran’s favor (and the Board cannot initiate reduction on its own). 38 C.F.R. §§ 3.344, 4.2, 4.3. To the extent that the examination results show that the Veteran’s hearing loss condition, at worst, was at the level approximating 10 percent, and no higher, the Board finds that the Veteran is not warranted a rating in excess of 10 percent throughout this period. In doing so, the Board reiterates that the evaluation for hearing loss is based on objective testing, and there are no other pertinent audiologist assessments throughout this period. As addressed briefly above, disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Accordingly, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for service-connected bilateral hearing loss throughout the appeal period. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 3. Entitlement to service connection for head injury, now claimed as traumatic brain injury is remanded. 4. Entitlement to service connection for left eye condition is remanded. 5. Entitlement to service connection for headaches associated with head injury now claimed as traumatic brain injury is remanded. The National Personnel Records Center (NPRC) reported that the Veteran’s service treatment records may have been destroyed in a fire at the Records Center in 1973, and concluded that it could not confirm the existence of such records. Under such circumstance, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran consistently provides that he injured his head and his left eye while in service, for which he was treated at a hospital in Germany (“7th Eval Hospital APO 175”). He also consistently states that he received post-service treatment from Allen Park Hospital in Michigan. He adds that he still suffers from headaches, memory loss, and depression, which allegedly resulted from his in-service head injury, and that he has undergone two operations on his left eye. Based on the Veteran’s contention that he received post-service treatment from Allen Park Hospital in Michigan for his head and eye conditions, the RO requested VA treatment records from Allen Park Michigan VA Medical Center (VAMC)—which was noted to have now closed and moved to Detroit—and from Detroit VAMC, from November 21, 1957 from January 1, 1969 (see March 2019 and January 2019 VA 10-7131 forms (requesting records from Allen Park Michigan VAMC from January 1, 1957 to December 31, 1960). None of these records were found to be available (see April 2019 correspondence letter). However, since these records would pre-date VA’s electronic medical records systems, searches must be made of retired/archived paper records. There is no indication that RO ever conducted a search for paper records. Additionally, while the Veteran stated that he received inpatient treatment at the 7th Evaluation Hospital in Germany after incurring a head injury in service, it appears that the RO only requested “sick/morning reports” but did not request a search of inpatient clinical records. See August 2019 VA 21-3101 form. Thus, the Board finds it necessary to remand for obtaining inpatient treatment records from 7th Evaluation Hospital in Darmstadt, Germany. Finally, the Veteran was never afforded a VA examination for these conditions. He has been diagnosed with status post-trauma in the left eye, bilateral pseudophakia, bilateral dry eye syndrome, migraines, chronic headache disorders and history of lacunar cerebrovascular accident. His March 2017 initial VA treatment records document his report of being hit on the head in service and experiencing headaches. In May 2017, the Veteran reported left eye being weak since incurring trauma in service (during which time he was diagnosed with status post-trauma in the left eye, bilateral pseudophakia, and bilateral dry eye syndrome), and he also reported headaches for 50 years (for which he was diagnosed with chronic headache). His June 2017 VA treatment records also document the Veteran’s report of being hit in the head with a piece of wood during a bar fight in 1957 and residual headaches, as well as his report that he had the same headache for 60 years after relaying the same in-service head injury, and was diagnosed with migraines and prescribed medication. However, his post-service treatment records are otherwise devoid of any medical nexus opinion. Although his voluminous private treatment records are almost devoid of any complaints, treatments, or diagnosis relating to these conditions, giving the benefit of the doubt and considering his service treatment records are missing, and in light of his complaints/treatments/diagnosis documented in his VA treatment records, VA must accept the Veteran’s lay assertion/testimony as to the in-service incident credible, at least for the sole purpose of obtaining examinations. The Board will otherwise evaluate the credibility of his assertions when the claims are considered on the merits. In light of above, the Board finds it necessary to remand for an examination and opinion. These matters are REMANDED for the following action: 1. Obtain and associate with the claims file all VA treatment records from October 2019 to present. 2. Obtain and associate with the claims file all paper records from Allen Park Michigan VAMC (now closed) and from Detroit VAMC from January 1, 1957 through January 1, 1969. Searches must be made of archived/retired paper records with documentation of negative responses. If the records do not exist or further attempts to obtain the records would be futile, make a formal finding of unavailability, and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Obtain records of any inpatient treatment at 7th Evaluation Hospital in Darmstadt, Germany, for July through August 1957. Document all requests for information as well as all responses in the claims file. 4. DO NOT SCHEDULE THE FOLLOWING until the above records have been obtained, to the extent possible. 5. Schedule a VA examination and opinion. The examiner must review the complete claims file, including this remand. Then, the examiner must address the following, with full supporting rationales: Determine whether the Veteran’s head injury (now claimed as traumatic brain injury), left eye condition, and headaches are at least as likely as not related to an in-service injury, event, or disease, to include the alleged in-service head/left eye injury. **The Veteran’s service treatment records might have been destroyed in the 1973 fire. Service treatment records are unavailable for review (unless additional records are obtained on remand). For the purposes of the opinion, the examiner should assume the Veteran’s statements about his service injuries are credible, unless they are inconsistent with the medical evidence or with medical principles concerning his condition(s). If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner may identify any discrepancies, inconsistencies, or contradictions contained in the evidence of record. However, the examiner’s opinion must not contain any determinations regarding the credibility of any statements made by the Veteran. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.