Citation Nr: 21003033 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-25 535 DATE: January 19, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for a head injury is denied. Service connection for left ear hearing loss is denied. Service connection for a right eye disability is denied. Service connection for hypertension is denied. A rating in excess of 30 percent for a left eye disability before January 30, 2018 is denied. A total disability rating based on individual unemployability (TDIU) is granted. Eligibility for payment or reimbursement for an automobile or other conveyance and adaptive equipment or adaptive equipment only is denied. Entitlement to specially adapted housing is denied. Entitlement to special housing adaptation is denied. REMANDED Entitlement to an increased rating for a left eye disability for the period since January 30, 2018 is remanded. FINDINGS OF FACT 1. The Veteran’s current psychiatric disability, to include PTSD, neither had its onset in nor is otherwise related to his active duty service. See Service Treatment Records (STRs) dated September 1960, October 1960; July 2012 Private Psychiatric Examination; March 2014 VA Examination; March 2020 VA Examination; VA Psychiatric Opinions dated June 2020, September 2020. 2. There is no evidence of any current head injury or residuals thereof independent of the Veteran’s service-connected migraine headaches. 3. The Veteran’s current left ear hearing loss neither had its onset in nor is otherwise related to his active duty service. See STRs dated September 1960, October 1960, November 1960 (Veteran’s hearing within normal limits on entrance and separation). 4. There is no evidence of any current right eye disability. See VA Examinations dated January 1961, December 2010, January 2018; May 2010 Private Eye Examination. 5. The Veteran’s hypertension neither had its onset in nor is otherwise related to his active duty service. See STRs dated September 1960, November 1960. 6. Before January 30, 2018, the Veteran’s left eye disability was manifested by no more than corrected distance acuity of 20/400 with diplopia. See May 2010 Private Eye Examination; December 2010 VA Examination. 7. The Veteran has been unable to secure or follow a substantially gainful occupation throughout the claim period, due to his service-connected disabilities. See, e.g., August 2017 Private Employability Opinion. 8. The Veteran’s service-connected disabilities do not result in permanent impairment or blindness of both eyes. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a head injury are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a right eye disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for an increased rating for a left eye disability before January 30, 2018 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.79, Diagnostic Code 6066. 7. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. 8. The criteria for eligibility for payment or reimbursement for an automobile or other conveyance and adaptive equipment or adaptive equipment only are not met. 38 U.S.C. §§ 3901, 3902, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.808. 9. The criteria for entitlement to specially adapted housing are not met.38 U.S.C. §§ 2101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.809. 10. The criteria for entitlement to special housing adaptation are not met.38 U.S.C. §§ 2101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from October 1960 to November 1960. This case is before the Board of Veterans’ Appeals (Board) on appeal from May 2011, July 2012, June 2014, and June 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Service Connection 1. PTSD, Head Injury, and Left Ear Hearing Loss Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran contends that his current psychiatric disability, to include PTSD, as well as left ear hearing loss and a head injury all were caused by an assault he suffered in service. See January 2011 VA Examination; July 2012 Private Psychiatric Examination; March 2014 VA Examination. With regard to the Veteran’s claimed head injury, he is already service connected for migraine headaches and the record reflects no other current head injury or residual thereof. Therefore, service connection for a head injury is not warranted. Turning to the remaining two disabilities, PTSD and left ear hearing loss, the Board finds that these disabilities neither had their onset in nor are otherwise related to the Veteran’s active duty service. Specifically, the Board finds that the preponderance of the evidence weighs against the Veteran’s report that an in-service assault was the cause of these disabilities. The Veteran asserts that he was assaulted in service in October or November 1960 and repeatedly was punched in the face, leading to chronic headaches, a left eye disability, left ear hearing loss, and PTSD. See, e.g., July 2012 Private Psychiatric Examination. The Veteran has also asserted that his headaches were the result of botched treatment for his injuries, rather than the injuries themselves, specifically a spinal tap inserted in the wrong vertebra. See September 2010 Veteran Statement. The Veteran reported that he had a four-day stay at Lackland Air Force Base Hospital following the assault. See id., March 2014 VA Examination. Records reflecting this hospital stay could not be located, and many of the Veteran’s STRs and personnel records are unavailable. The Board does not interpret the absence of records as evidence weighing against the Veteran’s assertions, and it recognizes its heightened duty consider the applicability of the benefit of the doubt rule, to assist the claimant in developing his claim, and to explain its findings and conclusions in light of the Veteran’s missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)). Nevertheless, the Board finds that the available STRs directly contradict the Veteran’s assertions regarding the onset of his disabilities. An October 1960 hospital record notes a history beginning in 1957 of severe headaches behind the left eye, accompanied by drooping of the left eyelid and outward turning of the eye. The Veteran specifically denied trauma associated with the onset of the condition. Another record a few days later likewise notes intermittent episodes of left eye pain and ptosis for the past three years. A November 1960 Medical Board noted suspected ophthalmoplegic migraines with neuropathy, both existing before service, and recommended the Veteran’s separation. The Veteran’s November 1960 separation examination also included an audiogram showing normal hearing bilaterally. Statements made for the purpose of medical diagnosis or treatment are considered exceptionally trustworthy, because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 355-56 (1991); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). In this light, the Board finds that the Veteran’s reports to in-service treatment providers that his disabilities had their onset before service are more probative than his later statements to VA and VA examiners in support of his claim for benefits. The earlier statements are also more proximate in time to the events they describe, and therefore less likely to be subject to mistake or corruption of memory. (The Board does not find that the presumption of soundness is rebutted in this case. The Veteran’s enlistment examination did not note either hearing loss or a psychiatric disability and he is presumed to have been in sound condition upon entry into service. Rebuttal of the presumption of soundness requires clear and unmistakable evidence that 1) the conditions preexisted service and 2) were not aggravated by service. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). The Board finds only that the extant in-service medical evidence, including the Veteran’s contemporaneous statements, contradicts his later reports that his disabilities were caused by an in-service assault.) In addition, the Board notes that whereas the Veteran contends that he suffered injuries specifically to his left side as the result of his in-service assault, including left ear hearing loss, hearing loss is not evidenced in service, and his current hearing loss is not limited to the left side. Rather, the audiogram on his separation examination reflects normal hearing bilaterally, and a February 2011 VA audiogram reflects roughly equivalent hearing loss of both ears, not just the left. Finally, although attempts to secure the record of the Veteran’s reported four-day stay at Lackland Air Force Base Hospital for treatment following his assault yielded no results, the Veteran’s STRs do include a record of a stay of at least two days at that hospital for evaluation of “possible ophthalmoplegic migraine.” See October 1960 STR. The record indicates that the Veteran denied any trauma associated with the onset of headaches, and that a lumbar puncture (spinal tap) was performed under local anesthetic on the second day of the hospital course. In other words, although the medical record does reflect a spinal tap in service, contra the Veteran’s later reports the record includes no mention of any problems with the lumbar puncture procedure and indicates that the Veteran’s headaches occurred before his stay in the hospital, rather than as a result of it, and were not associated with trauma. For all of these reasons, the Board finds that the preponderance of the evidence weighs against the Veteran’s assertion that his left ear hearing loss and PTSD were caused by an in-service assault. The Board’s finding is supported by a September 2020 VA psychiatric nexus opinion, which concluded that “the available records call the veracity of the assault into question.” Moreover, although a March 2014 VA psychiatric examination rendered a positive nexus opinion for a diagnosis of adjustment disorder with mixed anxiety and depression, the examiner found no diagnosis of PTSD and reported that the Veteran scored “FAR ABOVE the SIMS manual and research modified cutoffs,” indicating a high likelihood of “an attempt to intentionally portray oneself in a negative light,” suggesting “feigned symptoms.” For this reason, the examiner stated that he was “unable to provide an accurate decision without the use of mere speculation.” On the other hand, the Veteran’s assertions are supported by a July 2012 private psychiatric examination and opinion and by a June 2020 VA psychiatric nexus opinion. However, both of these examinations failed to address or explain the inconsistency between the Veteran’s STRs and his later report of an in-service assault. For instance, the July 2012 private examiner stated that the Veteran’s left ear hearing loss, left eye disability, and left side headaches were consistent with “a fist inflicted beating,” and that therefore the Veteran’s report was credible. However, although the examiner noted a history of “Ophthalmoplegia and a Third Nerve Palsy attributed to Migraine Headaches,” he failed to note or address the fact that this history predated the Veteran’s reported assault. Similarly, the June 2020 VA nexus opinion stated per the Veteran’s report that his migraines were caused by a botched spinal tap while he was in the hospital receiving treatment for his injuries. Again, the examiner neither noted nor addressed the fact that the Veteran’s STRs indicate a history of ophthalmoplegic migraine headaches predating his reported assault. In fact, the June 2020 VA nexus opinion, although it includes an extensive medical history, includes no medical rationale. For this reason, the Board finds that it is inadequate for VA rating purposes. All in all, the Board finds that the weight of the medical examination and opinion evidence does not disturb the finding that the Veteran’s disabilities were not caused by an in-service assault. Of three adequate medical opinions bearing on the question, one concludes that the Veteran’s disabilities are not related to an in-service assault, one states that an opinion cannot be provided without mere speculation, and one concludes that his disabilities are related to an in-service assault, but fails to address contradictory evidence. Therefore, the Board finds that the Veteran’s left ear hearing loss and psychiatric disability, to include PTSD, neither had their onset in nor are otherwise related to his active duty service. Accordingly, service connection for left ear hearing loss and a psychiatric disability, to include PTSD, is not warranted. Right Eye Disability The Veteran is seeking service connection for a right eye disability. As noted in the above findings of fact, there is no evidence at any point throughout the claim period of a current right eye disability. See, e.g., VA Examinations dated January 1961, December 2010, January 2018; May 2010 Private Eye Examination. Therefore, service connection for a right eye disability is not warranted. 2. Hypertension The Veteran is seeking service connection for hypertension, for which he has a current diagnosis. See August 2020 VA Treatment Record. However, as noted in the above findings of fact, there is no evidence that the Veteran’s current hypertension had its onset in or is otherwise related to his active duty service. The Veteran’s extant STRs contain no diagnosis of hypertension, and only two blood pressure readings, which together do not meet the criteria for hypertension for VA purposes. See STRs dated September 1960 (Reflecting blood pressure of 150/90), November 1960 (Reflecting blood pressure of 118/80); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note (1) (For VA compensation purposes, hypertension is defined as diastolic blood pressure of predominantly 90mm or greater, and isolated systolic hypertension is defined as systolic blood pressure of predominantly 160mm or greater with diastolic blood pressure of less than 90mm. A diagnosis of hypertension requires confirmation by readings taken two or more times on at least three different days.) The Veteran has not asserted any other theory of service connection for hypertension. Therefore, because there is no evidence of hypertension in service, the Board finds that the Veteran’s current hypertension neither had its onset in nor is otherwise related to his active duty service. Accordingly, service connection for hypertension is not warranted. Increased Ratings 3. Left Eye Disability before January 30, 2018 The Veteran’s left eye disability is currently rated as 30 percent disabling under the General Rating Formula for Diseases of the Eye for impairment of central visual acuity. See 38 C.F.R. § 4.79. Because his right eye is not service connected, it is treated as having visual acuity of 20/40 or better for rating purposes. See 38 C.F.R. § 4.75(c). Under the General Rating Formula, a rating in excess of 30 percent for an eye disability of one eye requires either documented incapacitating episodes requiring at least five treatment visits within the past twelve months, anatomical loss of the eye, or impairment of visual field. As noted in the above findings of face, before January 30, 2018, there is no evidence that the Veteran’s left eye disability was manifested by more than corrected distance visual acuity of 20/400 with diplopia. In particular, there is no evidence of any incapacitating episodes, anatomical loss of the service-connected eye, or impairment of visual field. See May 2010 Private Eye Examination; December 2010 VA Examination. Therefore, an increased rating in excess of 30 percent before January 30, 2018 is not warranted. The issue of entitlement to an increased rating in excess of 30 percent from January 30, 2018 on is remanded, and is treated in the Remand section, below. 4. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). The Veteran has a combined rating of 70 percent from August 18, 2010 with migraine headaches rated as 50 percent disabling from the same date. (The Veteran has no service-connected disabilities with effective dates earlier than August 18, 2010). Therefore, the schedular threshold has been met in this case. The remaining issue is whether the Veteran’s service-connected disabilities precluded him from securing and following a substantially gainful occupation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central question is whether the Veteran’s service-connected disabilities alone were of sufficient severity to produce unemployability, taking into consideration the Veteran’s education, training, and special work experience, but not his age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence reflects that the Veteran worked in an administrative position from 1972 to 1998. See May 2015 TDIU Application. In 1998, he retired because he felt he could no longer work due to his disabilities. See August 2017 Private Employability Opinion. The record indicates that the Veteran’s service-connected eye disability has produced some impairment throughout the claim period, in particular preventing the Veteran from driving. See September 2010 Veteran Statement; December 2010 VA Examination; August 2014 Notice of Disagreement; November 2017 VA Housebound Examination. More significantly, the record also reflects that the Veteran’s migraine headaches produce relatively severe impairment, requiring him to lie down in a dark room for several hours when they occur. See, e.g., March 2014 VA Examination; August 2014 Notice of Disagreement; August 2017 Private Employability Opinion. The Veteran’s headaches occur between one and five times a week. He reported that while he was employed, he was able to keep working because his employer allowed him special accommodations, including shutting himself in his office in the dark for an hour or two whenever he got a migraine headache. See August 2017 Private Employability Opinion. Altogether, the evidence indicates that the Veteran’s service-connected disabilities, and especially his migraine headaches, have prevented him from securing or maintaining a substantially gainful occupation throughout the claim period. Therefore, a TDIU is warranted throughout the claim period. Other Benefits 5. Automobile and/or Adaptive Equipment, Specially Adapted Housing, and Special Home Adaptation Legal Background—Automobile Grant Veterans or service members with certain service-connected disabilities may be found eligible to receive financial assistance in acquiring one automobile or other conveyance and adaptive equipment, or adaptive equipment only. 38 U.S.C. § 3901. Eligibility for assistance to purchase a vehicle and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis; or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. 38 U.S.C. § 3901; 38 C.F.R. § 3.808. Legal Background—Specially Adapted Housing and Special Home Adaptation Specially adapted housing is available to veterans who have a service-connected disability rated as permanent and total due to amyotrophic lateral sclerosis or one of the following: (1) The loss or loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, (2) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity, (3) The loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, (4) The loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, (5) The loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow, or (6) Full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). Preclusion of locomotion means the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. Id. Specially adapted housing may also be available to a veteran who served on or after September 11, 2001, who has a permanent disability that was incurred during such service, and which results in loss or loss of use of one or more extremities which so affects the functions of balance or propulsion as to preclude ambulating without the aids of braces, crutches, canes, or a wheelchair. See 38 U.S.C. § 2101(a)(2)(C). If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if he has a service-connected disability that results in blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens or a limitation in fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees; such a disability need not be permanent and total in nature. Additionally, a special home adaptation grant is available for a veteran that has a permanent and total disability which: (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the truck; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.809a(b). Discussion The Veteran is seeking an automobile allowance as well as specially adapted housing or special home adaptation. As noted above, these benefits may be warranted for veterans with various service-connected disabilities, including disabilities such as loss or loss of use or a hand or foot. However, the Veteran is only service connected for a left eye disability and migraine headaches. Therefore, the Board restricts its consideration to whether these benefits are warranted for impairment of visual acuity. Special home adaptation may not be granted on the basis of any visual impairment. Specially adapted housing may be warranted for blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity. An automobile allowance may be warranted for permanent impairment of vision of both eyes meeting certain criteria expounded above. In this case, the Veteran is only service connected for a disability of one eye. Therefore, neither the criteria for an automobile allowance nor the criteria for specially adapted housing are met. Accordingly, eligibility for payment or reimbursement for an automobile or other conveyance and adaptive equipment or adaptive equipment only is not warranted. Likewise, entitlement to specially adapted housing and special home adaptation is not warranted. REASONS FOR REMAND 1. Left Eye Disability from January 30, 2018 Fulfillment of VA’s statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination, so that the evaluation of the claimed disability will be fully informed. Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). In this case, the Board finds that the most recent examination evaluating the Veteran’s left eye disability is significantly incomplete and therefore inadequate for VA purposes. The Veteran’s left eye disability was most recently evaluated in a January 2018 VA examination. The examiner noted a visual field defect, but stated the defect could not be measured. As noted earlier, the Veteran may be entitled to an increased rating based on a visual field defect. However, because the January 2018 VA examiner did not produce a measurement or estimate of the Veteran’s visual field defect, the Board is unable to evaluate the Veteran’s disability and assign the appropriate rating. Therefore, a remand is necessary to provide the Veteran a new VA examination. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. After completing the development outlined in Item 1., schedule the Veteran for a VA examination to evaluate the current severity of his left eye disability. In particular, the examiner should note whether the Veteran’s left eye disability manifests in a visual field defect. If so, the examiner should measure the contraction of the Veteran’s visual field, or if it cannot be measured, offer an estimate thereof. The examiner must provide a fully articulated medical rational for all conclusions, opinions, or estimate, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that a particular answer cannot be provided, this conclusion should also be clearly explained (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, 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.