Citation Nr: 21070037 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-15 534 DATE: November 22, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for a heart disability is denied. Entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for a bilateral shoulder disability is remanded. Entitlement to service connection for a respiratory disability, to include a sinus disability, is remanded. FINDINGS OF FACT 1. The competent medical evidence of record does not confirm that the Veteran has a bilateral hearing loss disability for VA purposes. 2. Heart palpitations or sinus tachycardia are not separate, chronic disabilities for which VA disability benefits may be awarded. 3. The Veteran's TBI was manifested by, at most, level 1 facet of impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1112 (2018); 38 C.F.R. §§ 3.303, 3.385 (2020). 2. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 1112 (2018); 38 C.F.R. § 3.303 (2020). 3. The criteria for a rating in excess of 10 percent for TBI have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8045 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 2010 to January 2011, to include Southwest Asia. He served additional periods of active duty for training, inactive duty for training, and with the Army National Guard. His awards and decorations include the Purple Heart Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2013 and September 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in January 2021, and remanded, in part, for additional development. In a July 2021 rating decision, the RO granted entitlement to service connection for a cervical spine disability, right and left knee disabilities, and a right foot disability. That constitutes full grants of the benefits sought on appeal and hence, those matters are no longer in appellate status. The remaining issues have been returned to the Board for further appellate action. Service Connection 1. Bilateral Hearing Loss The Veteran has contended that he has a bilateral hearing loss disability that is related to his in-service noise exposure. However, December 2013 and April 2021 VA audiological evaluations did not confirm that the Veteran has a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Furthermore, audiometric testing conducted during the Veteran's active service or by a private chiropractor in March 2015 did not show bilateral hearing loss. Moreover, there are no audiometric test results of record that suggests that the Veteran's hearing loss was sufficient to cause any resulting disability or functional impairment as defined by VA regulations for disability due to impaired hearing. 38 C.F.R. § 3.385; Saunders v. Wilkie, No. 886 F.3d. 1356 (Fed. Cir. 2018) (indicating that the term "disability" refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). In the absence of proof of a present disability there can be no valid claim. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran is competent to identify reduced hearing acuity, he is not competent to provide a diagnosis for VA purposes, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hence, the Board gives more probative weight to the competent medical evidence. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Heart Disability The Veteran has asserted that he has a heart disability that is secondary to his service-connected posttraumatic stress disorder (PTSD). Specifically, he reported that he experienced heart palpitations, racing, and/or pounding. He suggested that his symptoms could be a result of supraventricular tachycardia (SVT) as secondary to his severe anxiety disorder. Service treatment records (STRs) were unremarkable for any complaints, treatment, or diagnosis for a heart disability. However, post-service VA medical center (VAMC) records revealed abnormal heart symptoms in as early as July 2012. He was diagnosed with mild sinus tachycardia in September 2012. In May 2021, the Veteran was afforded a VA examination. The examiner diagnosed the Veteran with heart palpitations. She did not make a finding for SVT. She opined that the Veteran's heart palpitations were at least as likely as not proximately due to or the result of the Veteran's service-connected PTSD. The Board notes that heart palpitations and sinus tachycardia, in and of themselves, are not recognized disabilities for VA compensation purposes. See 61 Fed. Reg. 20, 440 -20, 445 (May 7, 1996). The term "disability," used for VA purposes, refers to impairment of earning capacity resulting from diseases and injuries and their residual conditions. Allen v. Brown, 7 Vet. App. 439 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). There is no evidence of record that suggests that the Veteran's heart palpitations and sinus tachycardia causes any impairment of earning capacity. In the absence of proof of a present disability, there can be no valid claim. Brammer, supra; see also Gilpin, supra. Moreover, the Veteran's symptoms have already been attributed to a known clinical diagnosis. Namely, the Veteran's heart palpitations have been service-connected as a symptom of his PTSD. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a heart disability is not warranted. 38 U.S.C. § 5107(b); Gilbert, supra. Increased Rating The Veteran has contended that his TBI is worse than that contemplated by the currently assigned rating. In May 2014, the Veteran underwent a neurology consult at a VA medical center (VAMC). His brain CT and neurological evaluation were within normal limits. The Veteran was afforded a VA examination in August 2015. The examiner indicated that the Veteran had a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. Specifically, the Veteran reported memory difficulties since 2010. He complained of poor concentration and recall. However, the examiner noted that the Veteran has functioned in Publix's customer service department for the past eleven years. The examiner indicated that the Veteran had subjective symptoms that did not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. In this regard, the veteran reported experiencing daily headaches. The examiner determined that the Veteran's judgment, social interaction, orientation, motor activity, visual spatial orientation, neurobehavioral effects, communication, and consciousness were unremarkable. The examiner could not attribute any additional residuals to the Veteran's TBI other than his service-connected migraine headaches. In June 2021, the Veteran was provided an additional VA examination. The examiner observed no evidence of impairment of memory, attention, concentration, executive functions, judgment, social interaction, orientation, motor activity, visual spatial orientation, neurobehavioral effects, communication, or consciousness. The examiner indicated that the Veteran had subjective symptoms that did not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. The examiner could not attribute any additional residuals to the Veteran's TBI other than his service-connected migraine headaches. Referencing the Veteran's November 2016 VAMC neurology consultation report, the June 2021 VA examiner noted that the findings provided a reasonable profile of the Veteran's current neurocognitive functioning. While the Veteran had a documented history of concussive events, the Veteran's overall performance on neurocognitive testing did not reflect a decline over his expected premorbid level of functioning based upon his age and educational history. Hence, the Veteran's reported cognitive inefficiencies were not suggestive of neurocognitive impairment or changes that could be attributed to the residual effects of TBI/concussion given his pattern of cognitive proficiency on current testing and the normal recovery pattern associated concussion. Rather, the Veteran's inefficiencies in attention and memory were more likely than not associated with psychophysiological factors (chronic stress, sleep difficulties, depression, and probable PTSD). Additionally, the June 2021 VA examiner mentioned the Veteran's January 2017 VAMC TBI/polytrauma follow up. The VAMC physiatrist stated that the Veteran's reported psychological and cognitive symptoms were more likely than not related to some other psychological or medical condition(s) rather than a TBI/concussion which occurred several years ago, given the nature/history of the Veteran's TBI/concussion recovery. The June 2021 VA examiner acknowledged the Veteran's endorsement of cognitive impairments in memory, visuospatial function, and orientation that he first noticed upon returning home from deployment in 2011, as well as behavioral symptoms that were at their worst in 2019/2020. However, the examiner concluded that the Veteran's cognitive and behavioral symptoms were not caused by his TBI, and were better attributed to his co-morbid service-connected PTSD. The examiner explained that concussive symptoms developed acutely immediately after a concussive exposure, not months or years post-injury. The examiner noted that the Veteran no longer received formal medical care for TBI and self-managed his migraine headaches with Excedrin as needed. Considering the facets of cognitive impairment and other residuals of TBI not otherwise classified, the rating criteria do not support a higher rating at any point during the period on appeal. In this regard, the August 2015 VA examiner found that the evidence supported a "1" level of severity under the memory, attention, concentration and executive functions (MACE) facet. However, both the August 2015 and June 2021 VA examiners indicated that the evidence supported a "0" level of severity under the judgment, social interaction, orientation, motor activity, visual spatial orientation, subjective symptoms, neurobehavioral effects, communication, and consciousness facets. The overall percentage rating is assigned based on the level of the highest facet, which was "1" or 10 percent. The Board disagrees with the Veteran's contentions that the June 2021 VA examiner only considered his headache symptoms. As detailed above, the June 2021 VA examiner concluded that the Veteran's cognitive and behavioral symptoms were manifested by his service-connected PTSD, rated as 50 percent disabling. The November 2016 VAMC neurology consult and January 2017 VAMC TBI/polytrauma follow up substantiated the June 2021 VA examiner's finding that the Veteran's cognitive impairment could be not attributed to his TBI/concussion. Here, a distinct and separate disability rating based on the same symptoms or manifestations of the Veteran's service-connected PTSD would constitute prohibited pyramiding. Further, the Board notes that the Veteran's migraine headaches and tinnitus are separately rated. 38 C.F.R. § 4.14 (2020). Accordingly, the Board finds that a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 10 percent for a TBI and residuals of such is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Service Connection Bilateral Shoulder Disability In the January 2021 remand, the Board directed that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present shoulder disability. A review of the record shows that the Veteran was afforded the directed examination in May 2021. However, the Board finds that the medical opinion provided by that examiner is inadequate for adjudication purposes. Specifically, the May 2021 VA examiner did not address the Veteran's lay evidence and mechanism of injury to his shoulders from physical training, wearing heavy gear, pulling himself up and climbing into service vehicles, and carrying out combat duties. Furthermore, the examiner's rationale relies on an inaccurate factual premise that the Veteran did not receive treatment for a bilateral shoulder disability until 2019. The Board notes that compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). As the precise etiology of the Veteran's bilateral shoulder disability remains unclear, the Board finds that an addendum VA medical opinion is warranted. 2. Service Connection Respiratory Disability The Veteran has asserted that he has a respiratory disability that is related to his active service. Specifically, he reported that he has frequent sinus infections and difficulty breathing after his exposure to dust, burn pits, and other environmental toxins in Southwest Asia. In the January 2021 remand, the Board directed that the Veteran be afforded a VA examination to determine the nature and etiology of any currently present respiratory disability. A review of the record shows that the Veteran was afforded the directed VA examination in May 2021. The examiner determined that the Veteran did not have or has not ever had a respiratory disability, including chronic obstructive pulmonary disease (COPD)/bronchial asthma. The examiner was unable to confirm any chronic respiratory conditions or diagnosis of COPD/bronchial asthma or determine any symptoms related to the Veteran's active service. The examiner concluded that the diagnosis of "reduced residual lung volume with subjective dyspnea on exertion" rendered at the July 2015 VA examination was shown by the decreased residual volume (RV) upon pulmonary function testing (PFT). Because of COVID-19, the examiner could not determine by PFT whether the Veteran's RV was still reduced or an isolated event. The Board finds that the May 2021 VA examination does not adequately comply with the January 2021 Board remand. Specifically, the Board instructed the VA examiner to identify all current respiratory disabilities present during or proximate to the pendency of the claim. The examiner admitted that she could not obtain essential PFT results. Furthermore, the examiner did not consider any symptoms related to a sinus disability. The examiner's failure to comply with the remand directives necessitates remand for corrective action. Stegall, supra. Accordingly, the Veteran should be provided a new VA examination to determine the nature and etiology of any currently present respiratory disability, to include a sinus disability. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, return the claims file to a VA examiner with sufficient expertise for an addendum opinion to determine the nature and etiology of the Veteran's bilateral shoulder disability. The claims file must be made available to and reviewed by the examiner. If a new VA examination is required, then one should be scheduled. Based on the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present bilateral shoulder disability had its onset during the Veteran's active service or is otherwise etiologically related to such service. In forming the opinion, the examiner must address the private chiropractor's findings of a bilateral shoulder disability in March 2015 and consider the Veteran's lay assertions that physical training, wearing heavy gear, pulling himself up and climbing into service vehicles, and carrying out combat duties resulted in his bilateral shoulder disability. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present respiratory disability, to include a sinus disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should first identify all respiratory disabilities present during the pendency of the claim, or proximate thereto, to specifically include asthma, rhinitis, and sinusitis. Then, for each respiratory disability identified, even if currently resolved, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the respiratory disability had its onset during the Veteran's active service or is otherwise etiologically related to such service, to specifically include exposure to environmental toxins while serving in Southwest Asia and/or undiagnosed illness or chronic multi-symptom illness related to his such service. In forming the opinion, the examiner should consider the Veteran's reported symptoms since service. The rationale for all opinions expressed must be provided. 4. Confirm that all VA examinations and medical opinions provided comport with this remand and undertake any other development determined to be warranted. (Continued on the next page) 5. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.