Citation Nr: 21064548 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-55 920A DATE: October 20, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for right foot condition to include pain is remanded. Entitlement to service connection for left foot condition to include pain is remanded. Entitlement to service connection for mood swings, to include an acquired mental disorder other than PTSD characterized as mood swings, is remanded. Entitlement to service connection for skeletal arthritis, to include the shoulder joints, is remanded. Entitlement to service connection for left ankle condition to include pain and swelling is remanded. Entitlement to service connection for right ankle condition, to include pain and swelling, is remanded. Entitlement to service connection for erectile dysfunction (ED), to include as due to medications prescribed for low back disability, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to medications prescribed for low back disability, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for right hip condition to include pain is remanded. Entitlement to service connection for left hip condition to include pain is remanded. Entitlement to service connection for right upper extremity (RUE) peripheral neuropathy is remanded. Entitlement to service connection for left upper extremity (LUE) peripheral neuropathy is remanded. Entitlement to service connection for residuals of prostate cancer, status post-operative, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for hypertension, to include as due to an acquired mental disorder other than PTSD, is granted. Entitlement to service connection for a heart disorder, status post-CABG, (also claimed as ischemic heart disease (IHD)), to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for left knee disorder, to include pain, is remanded. Entitlement to service connection for right knee disorder, to include pain, is remanded. FINDINGS OF FACT 1. The weight of the evidence of record is against a finding that either bilateral hearing loss or tinnitus had onset in active service or is otherwise causally connected to active service. 2. The Board does not find credible the Veteran's claimed noncombat stressor, assuming for the sake of this case that it meets the criteria for a stressor. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). 3. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1965 to July 1969. Afterward, as a member of the U.S. Army Reserve (USAR), he had active service from January 1991 to March 1991, as well as tours of active duty for training (ACDUTRA) and inactive duty training (IDT.). He did not deploy overseas during his activation for Operation Desert Storm. The Veteran perfected this appeal from a September 2015 rating decision. He testified at Board hearings in July 2018 and March 2021 before two different Veterans Law Judges (VLJ). An August 2021 Board letter informed him of his right to request another hearing before the third VLJ who will comprise the panel to decide his appeal. See 08/20/2021 BVA Letter; see also Arneson v. Shinseki, 24 Vet. App. 379 (2011). In his response, the Veteran waived another hearing. See 10/04/2021 Correspondence. Service Connection General Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102. 1. Entitlement to service connection for bilateral hearing loss and bilateral tinnitus is denied. Specific Requirements In addition to the general requirements for service connection set forth above, certain organic diseases of the nervous system are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA deems sensorineural hearing loss (SNHL) and tinnitus as among the organic diseases of the nervous system that are covered. See VA Under Secretary for Health Memorandum (October 1995); see also Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Discussion The Veteran asserts that he sustained hearing loss due to his noise exposure associated with his military training and his MOS, which was heavy equipment driver. The Agency of Original Jurisdiction (AOJ) arranged an audio examination with instructions that the Veteran's MOS involved moderate noise exposure. See 06/23/2015 VA 21-2507a. The examination report (06/26/2015 C&P Exam, 1st Entry) reflects that the examiner conducted a review of the claims file and took and recorded the Veteran's history. The examiner opined that the audio test results were valid, and that they showed a sensorineural hearing loss (SNHL) in each ear. Hence, the first requirement for service connection is met, a currently diagnosed hearing loss. The examiner, however, opined that it was not at least as likely as not that the Veteran's bilateral SNHL had onset in active service or is otherwise causally connected to active service. The examiner noted that audio tests conducted in 1966, 1973, and 1994 showed the Veteran's hearing to be normal. The examiner explained that hearing loss induced by noise exposure does not progress after one is removed from the source of the noise exposure. Hence, the examiner opined that it is not likely that the Veteran's currently diagnosed bilateral hearing loss is due to his in-service noise exposure. Id. P. 4. The Board notes that the hearing test administered in 1969 prior to the Veteran's separation from active service was via the Whispered Voice test, which is not an accurate assessment of hearing acuity. See 08/25/1969 STR-MED, P. 3. The Board notes further, however, that the audiologist did not rely on that test as part of the basis for the negative opinion. Instead, the audiologist noted an audiogram from the Veteran's second year of service, Id. P. 22, and audiograms from the Veteran's USAR physical examination reports. Additionally, it is acknowledged that for the tests conducted prior to 1970, American Standards Association (ASA) to International Standards Organization (ISO) unit conversion must be undertaken. However, even applying the conversion (which adds a value of 15, 10, 10, 10, and 5 to the results at 500, 1000, 2000, 3000, and 4000 Hz respectively) the results do not reach the point of clinical hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss). The Veteran's February 1994 Report of Medical Examination for Quad reflects that his hearing manifested as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 5 0 0 LEFT 10 0 0 0 5 See 03/27/2014 STR-Med, P. 61. The audiologist opined that the above results showed normal hearing, which was three years after the Veteran's separation from active service. At the Board hearings the Veteran's testimony concerning the history of his hearing loss was vague at best. At the 2018 hearing he testified to the fact that his duties exposed him to the report of artillery fire, and that he was never issued hearing protection. See 07/10/2018 Hearing Transcript, P. 3, 16. At the second hearing when asked when he first noticed a decrease in his hearing, the Veteran responded that he guessed it started in the late 1970s and early 1980s. See 03/09/2021 Hearing Transcript, P. 5. Not only is the Veteran's testimony at odds with the objective audio examination results noted earlier, it is also contrary to the instances where he denied any history of hearing loss. See, e.g., 08/25/1969 STR-Med, P. 8; 03/27/2014 STR-MED, P. 62, 73, 77, 81. Hence, the Board is constrained to find that there is no evidence that the Veteran's hearing loss manifested within one year after his separation from active service in 1969 or 1991. The presumptive provisions for chronic diseases do not apply to periods of ACDUTRA or IDT. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, there is no factual basis for service connection on a presumptive basis. 38 C.F.R. § 3.307(a)(3). The Board finds further that the Veteran's hearing loss manifested well after his second tour of active service, and that there is no evidence of a specific incident of acoustic trauma that may have occurred during a period of ACDUTRA or IDT that resulted in hearing loss. As concerns the Veteran's tinnitus, as is the case with the hearing loss, the Board notes that the Veteran is fully competent to testify to his history of the disorder, to include the date that he first noticed the symptoms. See 38 C.F.R. § 3.159(a)(2). The 2015 examination report reflects the Veteran's report the onset of tinnitus over the prior years, and that it was worse on the left. See 06/26/2015 C&P Exam, 2nd Entry, P. 4. The audiologist opined that it was not at least as likely as not that the Veteran's tinnitus had onset during active service nor was it causally connected to active service. The audiologist noted first that the Veteran's tinnitus was likely associated with his hearing loss, which the audiologist opined is not connected to service. Second, the onset of the Veteran's tinnitus was significantly post-discharge from service and not likely connected. Id. P. 5. The Veteran's hearing testimony did not provide and clear evidence to the contrary. At the first hearing he testified that he experienced ringing of the ears while in service, but it would stop until his next exposure, and that it had worsened over the prior 17 years. 07/10/2018 Hearing Transcript, P. 17. The Board interprets the Veteran's testimony to mean that his ears would ring after acute noise exposure, at a firing range, for example, and then resolve. Hence, the Board finds that his testimony describes episodic rather than chronic tinnitus. An outpatient entry notes that he reported ringing in the ears since he was in the Transportation Corps. See 01/24/2017 CAPRI, P. 92. The outpatient entry suggests continuous symptomatology, but the Veteran's post-service records do not support such a finding. In light of the Veteran's testimony of episodic tinnitus and the examiner's opinion that the Veteran's tinnitus is associated with hearing loss that it is not connected to active service, the Board finds that the weight of the evidence of record is against a finding that tinnitus first manifested within one year of either tour of active service. The Board finds further that the audiologist's opinion is consistent with the evidence of record, hence the Board finds that the preponderance of the evidence of record is against the claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.307(a)(3), 3.309(a), 3.303. Since the preponderance of the evidence of record is against the claim, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. § 3.102. 2. Entitlement to service connection for PTSD is denied. Specific Legal Requirements In addition to the general requirements for service connection just set forth, there are particular requirements in 38 C.F.R. § 3.304(f) for establishing PTSD. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010) ("Simply put, while section 3.303 mandates that there be a link between a current disability and military service, section 3.304(f) sets forth the evidence necessary, in the context of claims for PTSD disability compensation, to establish that link."). Entitlement to 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), 4.125 (requiring PTSD diagnoses to conform to the Diagnostic and Statistical Manual of Mental Disorders-5 (DSM-5). Discussion Non-VA and VA outpatient records note diagnoses of PTSD and other acquired mental disorders. See, e.g., 09/04/2018 Non-Government, P. 3; 11/03/2019 CAPRI, P. 35. The Veteran's claimed stressor is not related to combat or service in a combat theater. Therefore, his lay testimony and assertions, alone, cannot verify his stressor. Generally, with a claim in that posture the Board would review to determine if VA has met the duty to assist the Veteran with verifying a noncombat stressor and remand for an examination to determine if the diagnosis of record meets the DSM criteria for PTSD. In this case, the AOJ made a Formal Finding that there is insufficient information to verify the Veteran's claimed stressor, to include checking with repositories of unit histories, etc. See 07/24/2015 VA Memo, 1st Entry. As discussed further immediately below, the Board finds that further efforts to verify the claimed stressors are not indicated. At the first hearing the Veteran emphasized the fact that his claimed stressor occurred during his first tour of active service, and that he stood on his to-be-submitted Stressor Statement in lieu of testifying to additional details, see 07/10/2018 Hearing Transcript, P. 11, as his second tour was served in the U.S., and he performed duty as an instructor. See 04/07/2015 Military Personnel Record (MPR), 1st Entry, P. 63, 64, 65. Upon review of the Veteran's testimony, service records, and his stressor statement, the Board finds simply that they are not credible. In his September 2018 Stressor Statement, the Veteran noted that his claimed stressor was based on in-country service in the Republic of Vietnam (RVN), where he had to guard body bags and he continued to see dead people. See 09/27/2018 VA 21-0781a, P. 2. This statement is obviously nonfactual on its face, as the Veteran never served in RVN. Perhaps the statement must be interpreted in light of a July 2015 VA mental health outpatient entry. The entry notes that the Veteran reported that he worked on burial details during the last four months of his first tour of service, as often as three to four times a week. He reported further that although he never served in combat, he had several combat-related dreams. See 01/24/2017 CAPRI, P. 108. Hence, read in the light most favorable to the Veteran, perhaps his Stressor Statement describes his dreams as opposed to his claiming actual service in RVN. Nonetheless, the outpatient entry further describes the stress the Veteran claimed from having served on the burial details, which the Board interprets as a claim that he was part of an Honor Guard at funerals for servicepersons who died in RVN. First, the Board finds nothing in the Veteran's records of his first tour of service, to include Letters of Appreciation or comments in performance evaluations, that indicates that he performed such duty at his last assignment, which was in Texas. Second, the Board doubts a claimed event. The entry notes that the Veteran described one instance at a funeral where a mother jumped into the grave with the casket. Id. Without any corroborating evidence, this claimed event is found improbable and incredible. Therefore, based on all of the above, the Board finds that the AOJ took adequate action to attempt to verify the Veteran's claimed stressor; and, that in the absence of a verified noncombat stressor, there was no requirement to arrange an examination to confirm a diagnosis of PTSD. In light of these factors, the Board is constrained to find that the preponderance of the evidence is against the claim. Since the preponderance of the evidence of record is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. § 3.102. REASONS FOR REMAND Except for the issue of peripheral neuropathy, the Veteran was not afforded VA examinations for the claimed disorders listed below. The Board finds that the evidence of record, to include the Veteran's testimony at the hearings, triggers the low threshold for examinations. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also 38 C.F.R. § 3.159(c)(4). 1. Entitlement to service connection for bilateral foot and ankle conditions, to include pain, is remanded. The Veteran testified to in-service foot pain which he attributed to poorly fitting boots, carrying heavy weights, and exposure to cold weather while standing guard duty in Germany. Further, an entry in the STRs dated in June 1978 notes the Veteran's complaint related to his right ankle. See 03/27/2014 STR-MED, P. 58. The entry does not indicate what the Veteran's duty status was at the time, and there is no indication in the MPRs of a tour of ACDUTRA or INACDUTRA on that date. Hence, the AOJ must arrange an examination and determine the Veteran's duty status. 2. Entitlement to service connection for an acquired mental disorder other than PTSD, characterized by mood swings is remanded. As noted in the earlier discussion of PTSD, the Veteran's outpatient records note diagnoses of mental disorders other than PTSD, to include schizoaffective disorder and major depressive disorder, with and without psychotic features. See 01/24/2017 CAPRI, P. 37, 112. His outpatient records also note his reports of hearing a soft female voice since he was in his 20s. That age range would include the Veteran's first tour of active service, as well as later periods. See 10/21/2017 CAPRI, P. 1. Hence, an examination is needed to determine if any diagnosed mental pathology had onset in active service or is otherwise causally connected to active service. 3. Entitlement to service connection for skeletal arthritis, to include bilateral shoulder, hip, and knee disorders, is remanded. The service-connected low back disability is based on a 1986 lifting injury the Veteran sustained while performing ACDUTRA in 1986. The Veteran testified that it was not only his back that was injured but also his shoulders, hips, and knees. His medical records note the presence of arthritis in those joints, so there is evidence of currently diagnosed pathology. Thus, an examination is triggered to identify the current pathology and whether there is any nexus with the 1986 event or other tour of ACDUTRA or INACDUTRA. 4. Entitlement to service connection for ED is remanded. The Veteran asserts that this disorder is due to his low back disability and the medication prescribed to treat it. This facet has not been evaluated. 5. Entitlement to service connection for GERD is remanded. The Veteran asserts that this disorder is also due to the medication prescribed to treat his low back disability. This facet has not been evaluated. 6. Entitlement to service connection for sleep apnea and insomnia is remanded. The Veteran testified at his hearing that he had difficulty sleeping during his active service, but at the time he did not know what sleep apnea was. Further, service connection is in effect for a low back disability, and the Veteran's VA outpatient records note obesity in his Problem List. Hence, additional medical review is needed to determine if the Veteran's obesity is an interim step before sleep apnea. The Board also notes that the results of the Veteran's Sleep Study was scanned into his VA outpatient records where a special tool is needed to view it. The AOJ must ensure that the actual report is included in the claims file in a visible format. 7. Entitlement to service connection for RUE and LUE neuropathy is remanded. Although a 2016 VA examination report reflects that there was no finding of neuropathy if the UEs, see 07/20/2016 VA Examination, the Veteran testified that he experiences numbness and tingling of his fingers, which he associates with shoulder pain. Hence, the Board deems this issue as intertwined with the bilateral shoulder claim. 8. Entitlement to service connection for residuals of prostate cancer, IHD, and HTN, to include as due to exposure to herbicide agents, is remanded. The AOJ made a Formal Finding that it found no evidence to support the Veteran's claim of exposure to herbicide agents. See 07/24/2015 VA Memo, 2nd Entry. The Finding, however, notes that the AOJ inquired solely as concerned the Veteran's service in Germany. The Veteran's testimony at the hearings, however, insinuated that he was exposed to contaminated equipment while serving in the U.S. Hence, the AOJ must ensure that records of stateside duty are also checked. The matters are REMANDED for the following action: 1. The AOJ shall comply with all requirements for ascertaining whether the Veteran was exposed to herbicide agents during his service in the U.S. as well as overseas. 2. The AOJ will ensure that all relevant treatment records generated since the case was certified to the Board are added to the claims file. 3. After the above is complete, the AOJ shall arrange a review of the claims file by an appropriate clinician to determine if it is at least as likely as not that the Veteran's GERD is due to any medication prescribed for treatment of his low back disability. Ask the clinician to also opine if it is at least as likely as not that the Veteran's ED is due to his low back disability or medication prescribed to treat it. A full explanation must be provided for all opinions rendered. 4. The AOJ shall also arrange an examination of the Veteran by an appropriate clinician to identify the nature of the Veteran's claimed musculoskeletal disorders, to include of the shoulders, hips, knees, ankles, and feet. Ask the clinician to opine on whether it is at least as likely as not that either or all of the currently diagnosed disorders of the shoulders, hips, knees, ankles, and feet had onset in active service or is otherwise causally connected to active service, to include the 1986 or other tours of ACDUTRA or IDT. Inform the clinician that a full explanation must be provided for all findings and opinions rendered. Inform the clinician further that the Veteran's lay report of his history and symptoms must be considered, and that sole reliance on the absence of documented treatment records without an explanation of the relevance and materiality of such absence, for a negative nexus opinion will constitute an inadequate examination per se. 5. The AOJ shall arrange an examination of the Veteran by an appropriate mental health clinician. Ask the clinician to identify all acquired mental disorders other than PTSD manifested by the Veteran, to include whether mood swings and/or insomnia are independent disorders or identifiable symptoms of an acquired mental disorder. Ask the clinician to opine on whether it is at least as likely as not that any currently diagnosed acquired mental disorder other than PTSD had onset in active service or is otherwise causally connected to active service, to include a tour of ACDUTRA or IDT. Inform the clinician that a full explanation must be provided for all findings and opinions rendered. Inform the clinician further that the Veteran's lay report of his history and symptoms must be considered, and that sole reliance on the absence of documented treatment records without an explanation of the relevance and materiality of such absence, for a negative nexus opinion will constitute an inadequate examination per se. 6. The AOJ shall ensure that all related scanned outpatient records are visible in the claims file. Afterward, arrange an examination of the Veteran by an appropriate clinician to determine if it is at least as likely as not that the Veteran's currently diagnosed sleep apnea had onset in active service or is otherwise causally connected with the Veteran's active service. Inform the clinician that the Veteran's lay report of his history and symptoms must be considered. Inform the clinician further that obesity is noted in the Veteran's Problem Lists in his VA outpatient records. If the clinician opines that there is no direct causal linkage between the Veteran's currently diagnosed sleep apnea and his active service, then is it at least as likely as not that the Veteran's obesity/weight gain is as a result of the service-connected lumbar spine disability and, whether it is at least as likely as not that the sleep apnea would not have occurred but for the obesity/weight gain caused by the service-connected lumbar spine disability? If the answer is, No, then is it at least as likely as not that the Veteran's obesity worsens the sleep apnea? Advise the clinician that any worsening need not be permanent; instead, an impairment in earning capacity due to temporary flare-ups of the sleep apnea caused by a service-connected disability is sufficient. See Ward v. Wilkie, 31 Vet. App. 233 (2019). If so, in terms of a percentage, please provide a baseline of aggravation. If the clinician answers in the negative to all of the above, and opines that the Veteran has a currently diagnosed acquired mental disorder that is causally connected to active service, then is it at least as likely as not that the Veteran's HTN is due to the mental disorder? If the answer is, no, is it at least as likely as not that the mental disorder worsens the HTN? Again, any worsening need not be permanent; instead, an impairment in earning capacity due to temporary flare-ups of the HTN caused by a service-connected disability is sufficient. There must be a full explanation for all opinions rendered. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans' Appeals D. JOHNSON Veterans Law Judge Board of Veterans' Appeals _____________________________ ERIC S. LEBOFF Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.