Citation Nr: A21019028 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 211015-191238 DATE: November 30, 2021 ORDER An evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. An evaluation in excess of 30 percent for bilateral hearing loss is denied. Service connection for pain in the left foot with swelling, numbness, tingling toes, and frost bite is denied. Service connection for pain in the right hand with numbness and tingling is denied. FINDINGS OF FACT 1. The Veteran's PTSD is not productive of occupational and social impairment with reduced reliability and productivity; of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood; or of total occupational and social impairment. 2. The Veteran has exhibited no worse than Level I hearing loss in each ear. 3. The Veteran has a current left foot disability and credibly reports experiencing cold in service. 4. The Veteran's left foot disability is not related to in-service cold exposure or otherwise related to service. 5. The Veteran has a current disability of the right hand. 6. The Veteran's disability of the right hand is not related to service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for PTSD are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). 2. The criteria for an evaluation in excess of 30 percent for bilateral hearing loss are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2020). 3. The criteria for service connection for pain in the left foot with swelling, numbness, tingling toes, and frost bite are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 4. The criteria for service connection for pain in the right hand with numbness and tingling are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1952 to September 1954 and from November 1955 to October 1957. This appeal is before the Board of Veterans' Appeals (Board) from April 2021 and May 2021 initial rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO); therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. See 38 C.F.R. § 3.2400(a)(1). In his October 2021 notice of disagreement, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of each original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. As such, the Board may consider evidence of record at the time of the April 2021 rating decision for the issue of entitlement to an increased rating for PTSD and at the time of the May 2021 rating decision for the remaining issues. Increased Ratings Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 1. Entitlement to an evaluation in excess of 30 percent for PTSD The Veteran claims an increased rating for his PTSD. Diagnostic Code 9411 of 38 C.F.R. § 4.130 specifically addresses PTSD; however, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, the Veteran's current 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). VA treatment records reflect that in March 2020 the Veteran reported fair and stable sleep, energy, appetites, and concentration. He reported hypervigilance. He denied symptoms of psychosis. He reported forgetfulness and word finding difficulties. He was diagnosed with recurrent moderate major depressive disorder, PTSD, and a mild vascular neurocognitive disorder. He regularly underwent group therapy. In a statement submitted with his March 2021 claim, the Veteran described his in-service stressors and reported flashbacks, nightmares, and anxiety attacks. He stated that his attacks prevented him from having an intimate relationship with anyone. The Veteran underwent a VA examination in April 2021. He reported no significant change since prior examinations. He stated that he lives alone and relies on his sons and a friend for meeting daily living needs. He reported continued nightmares and reactions to loud noises. The examiner noted symptoms of depressed mood, anxiety, mild memory loss, and disturbances of motivation and mood. Speech was normal, and mood and affect were positive, congruent, and expressed with appropriate range. He was diagnosed with PTSD productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Board finds that an evaluation in excess of 30 percent is not warranted for the Veteran's PTSD. Higher ratings are available for occupational and social impairment with reduced reliability and productivity; for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood; or for total occupational and social impairment. The evidence weighs against such impairment. Of the symptoms noted by the April 2021 VA examiner, depressed mood, anxiety, and mild memory loss are all explicitly contemplated by the 30 percent rating criteria. While disturbances of motivation and mood are noted in the criteria for a 50 percent evaluation, the evidence does not establish that this symptom causes that level of impairment. At the April 2021 examination, his speech was normal, and his mood and affect were positive and congruent. This finding was consistent with his March 2020 VA treatment records, where he reported fair and stable energy. Furthermore, his March 2021 claim contained reports of flashbacks, nightmares, and anxiety attacks. His current 30 percent rating explicitly contemplates sleep disturbances and panic attacks that occur weekly or less often. The Veteran has not reported that his panic attacks are more frequent, and his medical records do not reflect any reports of panic attacks at all. For these reasons, the Board finds that an evaluation in excess of 30 percent is not warranted for the Veteran's PTSD. 2. Entitlement to an evaluation in excess of 30 percent for bilateral hearing loss The Veteran claims an increased rating for his bilateral hearing loss. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment 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. 38 C.F.R. § 4.85. Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent 9 categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level V and the poorer ear had a numeric designation of Level VII the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., 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 hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. The Veteran underwent a VA examination in April 2021. He reported difficulty hearing when there was a lot of noise. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 50 60 46.25 LEFT 30 45 65 60 50 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. He was diagnosed with bilateral sensorineural hearing loss. The Board finds that an evaluation in excess of 30 percent is not warranted for the Veteran's hearing loss. His pure tone threshold averages taken together with his measured speech recognition ability show no worse than Level I hearing loss in both ears. Moreover, the evidence does not establish that the Veteran demonstrates exceptional hearing loss under 38 C.F.R. § 4.86. Higher ratings are not available unless at least one year shows hearing loss at Level VII or higher. The Veteran has not explained why he believes that his current 30 percent rating is inadequate, and there is no evidence to contradict the findings at the April 2021 VA examination. For these reasons, the Board finds that an evaluation in excess of 30 percent is not warranted for the Veteran's hearing loss. Service Connection 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). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (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). In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. The incurrence or aggravation may be rebutted by clear and convincing evidence to the contrary. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 3. Entitlement to service connection for pain in the left foot with swelling, numbness, tingling toes, and frost bite The Veteran claims service connection for a left foot disability. The May 2021 rating decision did not identify any favorable findings. Service treatment records do not reflect any left foot symptoms or treatment, and no such abnormality was noted at the Veteran's August 1957 separation examination. Similarly, Reserve service treatment records show no such abnormality at an October 1972 examination, and in the accompanying report of medical history he explicitly denied having ever experienced foot trouble. VA treatment records reflect that at a December 2013 mental health consultation the Veteran reported having pain in his feet when cold. He stated that he once had frostbite while serving in Korea, and his current pain was similar. In January 2014, he reported to his primary care physician pain in his feet during cold weather. No diagnosis was given. In September 2016 he reported tingling and numbness in his feet due to frostbite in Korea. In April 2019 he reported issues with left foot swelling beginning three weeks prior. An ultrasound confirmed a diagnosis of deep vein thrombosis. He was treated with medication. During a February 2021 visit to the emergency room, he reported intermittent bilateral ankle pain with swelling over the past two years. His nurse practitioner found that it was likely related to arthritis. In his March 2021 claim, the Veteran stated that in 2016 he had an onset of foot symptoms which he attributed to cold exposure in service. The Veteran underwent a VA examination in May 2021. He reported that he did not have enough clothes while serving in Korea, having to walk over snow with socks covered in brown paper bags in regular shoes. He reported that at the time there was pain and swelling treated with ointment provided by a medic. He reported current symptoms of numbness and tingling in cold weather that began 4-5 years prior. The examiner found no cold injury to diagnose. The examiner opined that current symptoms were less likely than not related to cold exposure in service. This opinion was based on the rationale that there was no chronic diagnosis of a cold injury. Objective examination was normal, and symptoms were subjective only. Furthermore, the examiner noted that the Veteran had signs and symptoms of peripheral neuropathy of the lower extremities that were less likely due to cold injury based on a June 2005 MRI showing lumbar radiculopathy. He also had a history of peripheral venous insufficiency which would cause swelling. The Board finds that the evidence weighs against a finding that the Veteran's left foot symptoms are related to service. The evidence clearly establishes current disabling symptoms affecting the left foot and lower extremity, and the Veteran has reported exposure to the cold that is consistent with the circumstances of his service in the Korean War. The May 2021 VA examiner, however, gave a probative opinion explaining that his current symptoms were more likely related to his non-service-connected lumbar radiculopathy and venous insufficiency than being exposed to the cold more than a half-century ago. The Veteran has stated that his current symptoms began approximately five years ago, not fifty. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's left foot symptoms are related to service, and service connection is therefore denied. 4. Entitlement to service connection for pain in the right hand with numbness and tingling The Veteran claims service connection for pain in his right hand. The May 2021 rating decision did not identify any favorable findings. Service treatment records do not reflect any right-hand symptoms or treatment, and no such abnormality was noted at the Veteran's August 1957 separation examination. Similarly, Reserve service treatment records show no such abnormality at an October 1972 examination. VA treatment records reflect that in November 2014 the Veteran presented to the emergency room reporting right facial droop and right-hand weakness. After observation and examination, he was discharged the next day with a diagnosis of Bell's palsy. At a January 2015 neurology consultation, he reported that after his November 2014 discharge he had difficulty with finger dexterity on the right side, with illegible handwriting and frequent dropping of items. He was diagnosed with a possible stroke. Subsequent treatment and physical therapy attributed his right-hand symptoms to residuals of a stroke. In August 2017 he reported new onset right-hand numbness and weakness to his neurologist, who ordered studies to rule out a new stroke. In September 2017 he reported improvement and was diagnosed with possible multilevel cervical spondylosis. This diagnosis was not confirmed by electromyography, which showed right ulnar mononeuropathy with entrapment at the elbow and likely sensorimotor axonal polyneuropathy of the upper extremities. He continued treatment for neuropathy. In June 2019 he consulted a surgeon for possible treatment of cubital tunnel syndrome. He declined surgery in July 2019. The same month, his neurologist noted a cervical spine MRI showing severe right neural foramina stenosis. At an August 2019 VA examination for his mental health, the Veteran reported that he had grasp issues in his right hand since a light stroke about four years prior. VA treatment records reflect that in February 2020 the Veteran reported symptoms at a rheumatology consultation. He was diagnosed with osteoarthritis, though it was noted that his x-ray findings may also suggest trauma. In his March 2021 claim, the Veteran stated that in 2014 he had an onset of symptoms in his right hand which he attributed to his work in service as a cook handling heavy pots. The Board finds that the evidence weighs against a finding that the Veteran's current right-hand symptoms are related to service. The evidence establishes current disabling symptoms of the right hand, and the Veteran attributes these symptoms to his regular work as a cook while in service. There is nothing in the record, however, to indicate a relationship between the Veteran's service as a cook and his current disability which he reports arose more than a half-century later. His treatment records reflect that his doctors alternate between attributing his right-hand symptoms to his non-service-connected stroke and his non-service-connected cervical spine disability. There is nothing to indicate a relationship to service beyond the Veteran's speculative statement. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's current right-hand symptoms are related to service, and service connection is therefore denied. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.