Citation Nr: 21072620 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-51 646 DATE: December 3, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for peripheral neuropathy is remanded. Entitlement to service connection for arthritis of the thoracolumbar spine is remanded. Entitlement to an initial evaluation greater than 10 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial evaluation greater than 10 percent for coronary heart disease (CAD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have current left ear hearing loss for VA purposes. 2. The preponderance of the evidence demonstrates that the Veteran's right ear hearing loss is not causally related to his conceded in-service noise exposure, or that the symptoms of right ear hearing loss have been continuous since service. 3. The Veteran does not have a current diagnosis of TBI. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a TBI have not been met. 38 U.S.C. § 1101, 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1965 to January 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that during the time the Veteran's claim for a higher initial rating for his service-connected PTSD has been pending, the matter of entitlement to a TDIU rating has been raised based upon the Veteran's statements. See Form 9, September 2017. As such, the Board finds the claim for an increased initial rating also includes a claim for entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection for certain chronic diseases, including peripheral neuropathy and other organic diseases of the nervous system such as sensorineural hearing loss, may be established on a presumptive basis by showing that such a disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Pursuant to 38 C.F.R. § 3.309(e), veterans who have been exposed to an herbicide agent during active service are entitled to presumptive service connection for certain listed diseases, including early-onset peripheral neuropathy. Early-onset peripheral neuropathy must have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. 1. Left ear hearing loss The Veteran generally contends that he has bilateral hearing loss as a result of his active military service, specifically as a result of exposure to military noise trauma as a result of working around large aircraft and military vehicles without sufficient hearing protection. See e.g., Form 9, received on September 29, 2017. VA has conceded miliary noise exposure as a result of the Veteran's military occupational specialty (MOS) as an instrument repairman. See SOC, received August 8, 2017. For 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 of 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Prior to November 1967, service departments used ASA units to record puretone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. For purposes of evaluating the pre-November 1967 service audiometric data with current standards to measure hearing impairment, the table below shows the ASA measurements recorded in service, with the comparable ISO (ANSI) measurements in adjacent parentheses. The Veteran's service treatment records show he underwent audiometric testing at enlistment, during service, and separation examination. In this regard, the July 1965 entrance examination report (which did not note whether ASA or ISO (ANSI) standards were used) contained the following audiometric test results, in pure tone thresholds, with findings listed as being in ASA standards and the conversions to ISO (ANSI) standards included in parentheses: HERTZ 500 1000 2000 3000 4000 LEFT -5 (10) -5 (5) -10 (0) -5 (5) 0 (5) RIGHT 0 (15) -5 (5) -10 (0) -10 (0) -10 (-5) The August 1965 annual examination report (which did not note whether ASA or ISO (ANSI) standards were used) contained the following audiometric test results, in pure tone thresholds, with findings listed as being in ASA standards and the conversions to ISO (ANSI) standards included in parentheses: HERTZ 500 1000 2000 3000 4000 LEFT 5 (20) -5 (5) -10 (0) -5 (5) 0 (5) The January 1969 exit examination report (which noted ISO (ANSI) standards were used) contained the following audiometric test results, in pure tone thresholds: HERTZ 500 1000 2000 3000 4000 LEFT 10 5 0 0 5 The Veteran's service treatment records are silent for complaints, diagnosis, or treatment related to hearing problems. In a January 1969 Report of Medical History, the Veteran answered "no" to a history of ear, nose, or throat trouble and to a history of hearing loss or wearing a hearing aid. After converting the July 1965 and August 1965 audiometric results to ISO (ANSI) units, the evidence shows a 10-decible increase in left ear hearing thresholds at 500 Hertz from July 1965 to August 1965. In the other tested frequencies, the Veteran's hearing acuity stayed the same for the left ear. The Board notes that the threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The audiometric test results included on the July 1965, August 1965, and January 1969 enlistment, annual, and exit examination reports, when considered under the ASA standards, indicated normal bilateral hearing in that all decibel results were not higher than 20. Furthermore, the record shows no post-service VA or private medical records to confirm that the Veteran has experienced a current left ear hearing loss disability as defined by 38 C.F.R. § 3.385 during the period on appeal. The Veteran was afforded a VA audiological examination in August 2015. He reported a history of military noise exposure while repairing aircraft instruments on the flight line without hearing protection. He also reported limited post-military occupational noise exposure while working as a brick layer. On the authorized VA audiological evaluation in August 2015, pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 LEFT 15 20 5 25 25 Speech recognition was 96 percent in the left ear, as measured by the Maryland CNC test. The Board finds that entitlement to service connection for left ear hearing loss is not established. Although exposure to acoustic trauma during service has been established, this alone is insufficient to establish entitlement to service connection. There must still be evidence of a current left ear hearing loss disability as defined by 38 C.F.R. § 3.385. The Board acknowledges the Veteran's lay statements, which imply the presence of a left ear hearing loss disability or diminished hearing acuity during the period on appeal; however, lay statements are insufficient to establish a current hearing loss disability, as the applicable regulations establish that hearing loss must meet the quantifiable auditory thresholds and speech discrimination results set forth in 38 C.F.R. § 3.385 to qualify as hearing loss for VA compensation purposes. Cf. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (the Federal Circuit's defining of a "disability" as a functional impairment of earning capacity does not apply when VA has used its authority to limit compensation to disabilities that conformed to certain regulatory criteria). As the record contains no audiometry or speech recognition test results that meet these criteria, the Veteran has not established the presence of a current left ear hearing loss disability within the appellate period. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that Secretary's and Court's interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v Derwinski, 2 Vet. App. 141, 143 (1992). For hearing loss, there is the added requirement that the standards outlined in C.F.R. § 3.385 must be met. In this case there is no evidence that confirms the existence of a current left ear hearing loss disability under 38 C.F.R. § 3.385 during the period under consideration. In light of the above considerations, the Veteran's claim seeking service connection for left ear hearing loss must be denied. 2. Right ear hearing loss As noted previously, the Veteran generally contends that he has bilateral hearing loss as a result of his conceded exposure to military noise trauma. The Veteran's service treatment records show he underwent audiometric testing at enlistment, during service, and separation examination. In this regard, the July 1965 entrance examination report (which did not note whether ASA or ISO (ANSI) standards were used) contained the following audiometric test results, in pure tone thresholds, with findings listed as being in ASA standards and the conversions to ISO (ANSI) standards included in parentheses: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) -5 (5) -10 (0) -10 (0) -10 (-5) The August 1965 annual examination report (which did not note whether ASA or ISO (ANSI) standards were used) contained the following audiometric test results, in pure tone thresholds, with findings listed as being in ASA standards and the conversions to ISO (ANSI) standards included in parentheses: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) -5 (5) -10 (0) -10 (0) -10 (-5) The January 1969 exit examination report (which noted ISO (ANSI) standards were used) contained the following audiometric test results, in pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 5 5 The Veteran's service treatment records are silent for complaints, diagnosis, or treatment related to hearing problems. In a January 1969 Report of Medical History, the Veteran answered "no" to a history of ear, nose, or throat trouble and to a history of hearing loss or wearing a hearing aid. After converting the July 1965 and August 1965 audiometric results to ISO (ANSI) units, the evidence shows the Veteran's hearing acuity stayed the same for the right ear in all tested frequencies. The Board notes that the threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. See Hensley, 5 Vet. App. 155, 159. The audiometric test results included on the July 1965, August 1965, and January 1969 enlistment, annual, and exit examination reports, when considered under the ASA standards, indicated normal bilateral hearing in that all decibel results were not higher than 20. The Veteran was afforded a VA audiological examination in August 2015. He reported a history of military noise exposure while repairing aircraft instruments on the flight line without hearing protection. He also reported limited post-military occupational noise exposure while working as a brick layer. On the authorized VA audiological evaluation in August 2015, pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 10 45 55 Speech recognition was 96 percent in the right ear, as measured by the Maryland CNC test. The August 2015 audiological examination shows the Veteran has a current right ear hearing loss disability as defined by 38 C.F.R. § 3.385. After reviewing the claims file and examining the Veteran, the August 2015 examiner opined that right ear hearing loss was less likely than not caused by or a result of an event in service. The examiner reasoned that there was no significant threshold shift when comparing the entrance and exit examinations. Although the Veteran's MOS most likely exposed him to excessive noise, the service medical records do not indicate that such exposure had a negative impact on hearing. The examiner observed that in an Institute of Medicine (IOM), National Academy of Sciences 2006 article titled Noise and Military Service Implications for Hearing Loss and Tinnitus, the IOM concluded that based on current knowledge of cochlear physiology, there was no sufficient scientific basis for the existence of delayed-onset hearing loss." The examiner commented that the IOM did not rule out that delayed onset might exist, but because the requisite longitudinal animal and human studies had not been done, and based on the current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed-onset hearing loss. The VA examiner, in August 2015, did not directly note conversion of the Veteran's in-service audiological examinations dated pre-November 1967, and thus presumed to be reported in ASA standards. However, the Board finds such to be harmless as the examiner reported that the Veteran's in-service audiological examinations were silent for hearing loss and indeed, results of his in-service audiological examinations revealed, after conversion, right-ear hearing acuity of 20 decibels or less, or normal hearing. Hensley, 5 Vet. App. 155, 157. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic conditions, such as sensorineural hearing loss, specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). Although the Veteran reported a continuity of hearing loss since service, neither hearing loss nor an organic disease of the nervous system was noted during service. Indeed, the Veteran specifically denied a history of ear, nose, or throat trouble and to a history of hearing loss or wearing a hearing aid on the January 1969 exit examination report. A review of the claims file indicates the Veteran did not complain of hearing loss until 2014, nearly 45 years after service. Therefore, the evidence is against a finding of continuity of symptomatology for the Veteran's right ear hearing loss dating back to his service. While the Veteran is competent to report a symptomatology, a hearing loss disability for VA purposes is based on whether the level of hearing acuity at multiple frequencies meets the criteria of 38 C.F.R. § 3.385. In light of the normal audiograms throughout service and the Veteran's explicit denial of hearing and ear problems during his January 1969 exit examination, and the absence of a specific point in time when the loss of hearing acuity was noted, the Board affords significantly greater probative weight to the medical evidence of record than the Veteran's lay assertions of an association between the current right ear hearing loss disability and his active service, to include conceded in-service noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a right ear hearing loss. The benefit of the doubt doctrine is not for application, and entitlement to service connection for right ear hearing loss is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. TBI The Veteran generally contends that he has a TBI as a result of his active military service, specifically "due to explosions in Vietnam." See Fully Developed Claim, dated February 24, 2015. The Veteran's service treatment records do not reflect any complaint, treatment, or diagnosis of a TBI. Post-service, VA treatment records reflect that in August 2016, the Veteran reported having left-sided neck and occipital pain for over 30 years. He denied double vision, swallowing issues, dizziness, weakness, numbness, and cognitive issues. He underwent a neurology examination, which showed no signs of neurodegenerative disease. In November 2016, the Veteran underwent an MRI of the brain which was unremarkable. Upon review of the evidence of record, the Board finds that the claim for service connection for a TBI must be denied. The weight of the above evidence reflects that the Veteran has not had a TBI during the pendency of the claim. While a "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 44-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service-connected disabilities"), here the evidence does not reflect any complaint or notation of physical defect of the Veteran's brain as related to a TBI. As the Veteran has not had a TBI, entitlement to service connection is not warranted. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) ("Without a current disability, of course, there can be no service connection and, thus, no disability compensation"). The Board notes that the duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § § 3.159(c)(4), 3.326(a); McLendon, 20 Vet. App. at 79. A VA examination was not obtained. In this case, no examination is necessary in order to adjudicate the Veteran's claim of entitlement to service connection for TBI. As indicated in the discussion above, the evidence does not show a current diagnosis of TBI, or persistent or recurrent symptoms thereof, and there is no evidence indicating that a TBI may be associated with service. To the extent that the Veteran has asserted that he has a TBI that is related to service, such a conclusory generalized lay statement alleging nexus between a current disability and service does not meet the standard to warrant a VA examination. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). In essence, even if we accept the Veteran's lay statements as to what he experienced during service; i.e., he was exposed to explosions in Vietnam, the current evidence of record shows that he does not present with any symptoms that are consistent with TBI residuals. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a TBI. The benefit of the doubt doctrine is not for application, and entitlement to service connection for is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Peripheral neuropathy The Board cannot make a fully-informed decision on the issue of service connection for peripheral neuropathy because no VA examiner has opined whether the Veteran's currently diagnosed peripheral neuropathy is related to his active service, including presumed exposure to herbicide agents based upon his service in Vietnam. The Veteran should be afforded the opportunity to attend a VA examination to assist in obtaining evidence in support of his claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Arthritis of the lumbosacral spine The Veteran contends that he has arthritis of the lower back as a residual of low back injuries that occurred during his active military service. See, e.g., VA Form 9, September 2017. Episodes of back strain and recurrent back pain are documented in his service treatment records. In August 2015, the Veteran underwent a VA spine examination that identified previously diagnosed degenerative arthritis of the lumbar spine with lumbar radiculopathy. After examining the Veteran, the examiner opined that the Veteran's back disability was less likely than not related to the Veteran's active service. However, the Board finds this opinion to be incomplete because the examiner did not provide sufficient rationale as to why the documented in-service injuries resulting in back strain "were not severe enough to result in the development" of the current disabilities. VA opinion, August 2015. An addendum medical opinion is required. 3. PTSD A remand is necessary to afford the Veteran a VA examination to determine the current severity of his PTSD. A review of the record suggests that this condition has worsened in severity since the last VA examination in August 2015. The Veteran's September 2017 substantive appeal (VA Form 9) documents the Veteran's reports of severe PTSD symptoms, including agitation, anger, and anxiety, which have led to him being unable to maintain employment. As the evidence indicates a potential worsening of the Veteran's PTSD symptoms, he should be afforded the opportunity for a new VA examination to determine the severity of this disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 4. CAD The August 2015 VA examination is inadequate for rating purposes. The examiner noted both that the Veteran's METs (Metabolic Equivalent Threshold) score was 7.0 and that it was greater than 7 METs (a relevant distinction based on the rating criteria for the Veteran's disability), and noted both that interview-based METs testing was and was not performed. An additional VA examination is necessary for clarification. 5. TDIU As discussed in the introduction, the Veteran has raised the issue of TDIU during the course of his appeal for a higher initial rating for his service-connected PTSD. Specifically, in his September 2017 Form 9, the Veteran reported that he is no longer able to retain and maintain any type of gainful employment due to his PTSD symptoms. The matter of entitlement to a TDIU is inextricably intertwined with the other claims, including PTSD, being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, the claim of entitlement to a TDIU must also be remanded. The matters are REMANDED for the following action: 1. As the Veteran's statements regarding the severity of his service-connected psychiatric disability raise the matter of entitlement to a TDIU rating, send the Veteran a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) to obtain further information regarding his employment and educational history. 2. Schedule the Veteran for a VA examination for his peripheral neuropathy. The examiner must review the claims file. The examiner is asked to provide a response to each of the following, and a supporting medical rationale must be provided for each opinion offered: (a.) Is the Veteran's peripheral neuropathy due to an organic disease of the nervous system? Only if so, is it at least as likely as not that the organic disease of the nervous system (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (b.) Is the Veteran's peripheral neuropathy considered "early-onset peripheral neuropathy"? Why or why not? (c.) Is the Veteran's peripheral neuropathy at least as likely as not related to in-service exposure to herbicide agents? (The examiner is advised that a negative opinion cannot be based solely on the fact that peripheral neuropathy is not on the list of diseases that are presumptively associated with exposure to herbicide agents.) (d.) Is the Veteran's peripheral neuropathy at least as likely as not otherwise related to his active service? 3. Obtain an addendum opinion regarding whether the Veteran's arthritis of the lumbar spine is at least as likely as not related to the documented in-service injuries in 1968 resulting in back strain. The VA examiner shall review the claims file, including all lay statements and the history provided by the Veteran, and opine whether it is as least as likely as not (50 percent probability or greater) that the currently diagnosed arthritis of the spine is related to the in-service injuries, or the actions or events that caused those injuries. A supporting rationale must be provided for the opinion offered. 4. Schedule the Veteran for an examination to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify all symptoms of social and occupational impairment due to his service-connected PTSD alone. (Continued on the next page) 5. Schedule the Veteran for an examination to determine the current severity of his service-connected CAD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. A new interview-based METs test should be performed if determined to be appropriate by the examiner. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU rating. If a benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. K. McDonald Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.