Citation Nr: 21072759 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-28 801A DATE: December 6, 2021 ORDER The application to reopen the claim for service connection for a right foot disorder is granted. The application to reopen the claim for service connection for a left foot condition is granted. The application to reopen a claim for service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for a left foot disorder is denied. Entitlement to service connection for a right foot disorder is denied. Entitlement to service connection for erectile dysfunction (ED) is denied. Entitlement to service connection for a left hip disorder is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED Propriety of the May 2015 severance of service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, a depressive disorder, or a substance use disorder, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a headache disorder is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In March 2016 and August 2016 rating decisions, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a bilateral foot disorder. 2. Additional evidence was received within the one-year appeal period following the March 2016 and August 2016 decisions. 3. Evidence associated with the record since the March 2016 and August 2016 decisions relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral foot disorder. 4. In a final November 2013 rating decision, the VA RO denied service connection for an acquired psychiatric disorder, characterized as depression. 5. Evidence associated with the record since the November 2013 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. 6. A right and left foot disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, nor did it manifest within one year of service. 7. ED is not shown to be causally or etiologically related to any disease, injury, or incident during service. 8. A left hip disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, nor did it manifest within one year of service. 9. For the entire appeal period, the Veteran's bilateral hearing loss resulted in no worse than Level I hearing impairment bilaterally. CONCLUSIONS OF LAW 1. The March 2016 and August 2016 rating decisions relevant to the bilateral foot disorders did not become final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(b) (2021). 2. The criteria for reopening the previously denied claim for service connection for bilateral foot disabilities are met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156. 3. The criteria for reopening the previously denied claim for service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for a left and right foot disorder are not met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for ED are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a left hip disorder are not met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to April 1986. These matters come before the Board of Veterans' Appeals (Board) on an appeal from May 2015, August 2017, and March 2018 rating decision by a VA RO, which is the Agency of Original Jurisdiction (AOJ). With regard to the claim for service connection for a psychiatric claim, in light of the numerous diagnoses of record, the Board has recharacterized such as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, a depressive disorder, or a substance use disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Moreover, although the appeal was certified to the Board in response to the March 2018 rating decision denying service connection for anxiety, the Veteran had already initiated an appeal of the denial of service connection for PTSD in the May 2015 rating decision. That appeal was improperly closed out after a June 2017 statement of the case (SOC). In this regard, the Veteran submitted a June 2017 Form 9 Substantive Appeal, which indicated he wished to appeal all the issues on the June 2017 SOCs. This election properly included the issue of service connection for PTSD. Additionally, service connection for a headache disorder was denied in a March 1997 rating decision. However, relevant service department records were associated with the record following that decision, which had not been previously reviewed. Consequently, new and material evidence is not required to reopen the claim for service connection for a headache disorder. See 38 C.F.R. § 3.156(c). Reopened Claims If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 1. Whether new and material evidence has been received in order to reopen the claim for service connection for a right foot condition. 2. Whether new and material evidence has been received in order to reopen the claim for service connection for a left foot condition. The Veteran's claim of service connection for a bilateral foot disorder was denied in a March 2016 rating decision. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision. However, in May 2016, he filed a new application for service connection for a bilateral foot disorder, which the AOJ determined was a request for reconsideration of the March 2016 decision. New VA treatment records were added to the file in August 2016. The AOJ reconsidered the issues in an August 2016 rating decision, but found the VA treatment records received did not constitute new and material evidence. Thus, the denial of service connection was confirmed and continued. Following that decision, the Veteran filed another application for service connection for a bilateral foot disorder in January 2017, and additional evidence was added to the record within the appeal period for the August 2016 rating decision, including an August 2017 VA examination. The AOJ then confirmed and continued the denial of service connection for the right foot disorder only in an August 2017 rating decision. The Veteran filed another application for service connection for the bilateral feet in January 2018, and more VA treatment records were added to the file. Then, the AOJ denied service connection for a bilateral foot disorder in the March 2018 rating decision currently on appeal. Here, as the Veteran filed an application for reconsideration of the March 2016 rating decision, and additional evidence was received within a year of each the March 2016 and August 2016 rating decisions, the AOJ was obligated to make a determination whether the evidence was new and material. Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). Further, additional evidence relevant to the foot disability claims was received within a year of the August 2017 rating decision. A claim remains pending where VA fails to fulfill a statutory duty under 38 C.F.R. § 3.156(b) to determine the character of evidence submitted within the one-year appeal period following issuance of a rating decision. Id. The AOJ did not issue a decision a rating decision considering whether the additional until the March 2018 decision currently on appeal. This prevented finality from attaching to the 2016 and 2017 rating decisions. 38 U.S.C. § 7105; Beraud, 766 F.3d at 1406; 38 C.F.R. § 3.156(b). The evidence received since the March 2016 and August 2016 rating decisions includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. The claims were previously denied for lack of a nexus to service for the right foot and a lack of an in-service event for the left foot. The Veteran submitted a medical opinion from his treating podiatrist in September 2018, which opined that the Veteran's right foot disorder is related to service. Further, the Veteran reported a separate in-service injury for both feet and had an additional diagnosis of arthritis in an August 2017 VA examination. This new evidence addresses the reasons for the previous denials; that is, a nexus to service for the right foot and an in-service event for the left, and raises a reasonable possibility of substantiating the claims. Accordingly, the application to reopen the claim for entitlement to service connection for bilateral foot disabilities is granted. 38 C.F.R. § 3.156(a). The appeal is granted to this extent only. 3. Whether new and material evidence has been received in order to reopen the claim for service connection for an acquired psychiatric disorder. The AOJ originally denied the Veteran's claim of service connection for an acquired psychiatric disorder in a November 2013 rating decision. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision, and no additional evidence was physically or constructively received within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2013). In this regard, the Board recognizes that additional documents labelled STRs (Service Treatment Records) were added to the record after the November 2013 decision. However, the November 2013 rating decision clearly shows review of all the service department records in the file, and thus while added to the electronic file at a later date, they were associated with the record at the time of the decision. Reconsideration of the Veteran's original claim is not warranted. 38 C.F.R. § 3.156(c). The evidence received since the November 2013 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran submitted a private medical opinion in August 2021 in which a physician opined that the Veteran's anxiety disorder and substance use disorder were caused by a TBI in service. This new evidence addresses the reason for the previous denial; again, a nexus to service, and raises a reasonable possibility of substantiating the claim. Accordingly, the application to reopen the claim for entitlement to service connection for an acquired psychiatric disorder is granted. 38 C.F.R. § 3.156(a). The appeal is granted to this extent only. Service Connection The Veteran contends that he has bilateral foot disorders, ED, and a left hip disorder, all of which are due to his active service, and therefore service connection is warranted. However, after a review of the record, the record does not support a relationship between the claimed disorders and service, and thus service connection must be denied. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 4. Entitlement to service connection for a right foot disorder. 5. Entitlement to service connection for a left foot disorder. The Veteran contends that his current bilateral foot disorders were caused by injuries in service. In this regard, he underwent a VA examination for his claimed foot disorders in February 2016. At that time, he reported that his feet were run over and crushed by a 9-wheel pneumatic roller in 1979, whereafter he was placed on profile for two weeks. He reported experiencing pain on the dorsal aspect of the foot without relief by orthotic, and some relief from Gabapentin. The examiner noted diagnoses of bilateral hallux valgus from x-ray, but no fracture or dislocation was evident from x-ray. The examiner also noted the x-ray results showed some minimal suspected osteoarthritic degenerative changes involving both first MTP (metatarsophalangeal) joints; moderate in size right and small left bunion formations; small bilateral calcaneal enthesopathic spurs; and made an incidental note of cortical irregularity in vicinity of right lateral malleolus (ankle) suggestive of possible remote trauma. The examiner then opined that the bilateral foot condition was less likely than not related to the claimed in-service event or injury. The examiner noted that the Veteran's September 1985 separation report of medical history was silent for any foot pain complaints. The examiner also opined that the peer reviewed medical literature does not support a nexus for hallux valgus to a toe contusion. In this regard, the Veteran reported that a 9-wheel pneumatic roller crushed his feet in 1979. However, his STRs are silent for any such injury, or a physical profile of two weeks for any foot injury. Rather, a June 1979 record notes the Veteran complained of pain in his right toe for one day, stating it may be caused by keeping his toe in the same position all day in a jeep or boots, but there was no trauma. It was given an impression of a first MTP contusion, as noted by the above examiner. His STRs are otherwise silent for any complaint, treatment, or diagnosis of a foot or toe injury. Notably, the Veteran was afforded another VA examination for his feet in August 2017. At that time, his diagnoses had changed to include bilateral arthritis as well as hallux valgus. The Veteran also reported a separate foot injury from service, stating that he slipped and fell, and his toes and feet were wrapped and put in a splint for a few weeks. He also reported he first sought treatment in 2011 for his foot injuries. The examiner included the relevant excerpts from his STRs, and opined that it was less likely than not that his foot disorders were related to his active service. Specifically, the examiner noted there was no trauma to the feet or toes while in service, the separation examination was silent for any foot or toe disorder, the records are silent for years after service concerning any foot or toe disorder, and the current records show a bilateral foot condition, rather than one just affecting the right toe. In this regard, the record first includes a complaint of foot pain from December 2014, which he described as numb and sometimes sharp. From that point, the Veteran continued to seek treatment for his foot pain. Beginning in September 2018, the Veteran reported his injured his foot in October 1985 when he bent his toes backwards when they got caught as he was coming down from a backhoe. He also stated his boots contributed to the injury, and he stated he had a hairline fracture as well. At that time, his treating podiatrist wrote a September 2018 letter, noting that he had a complicated metatarsalgia, foot and toe deformity, and chronic pain as well as neuropathy. The podiatrist noted his report that in October 1985 his foot was bent backwards in a backhoe accident, and that x-ray imaging showed evidence of proximal phalanx fracture on the fourth toe, with possible hairline fracture of right fourth metatarsal neck. He concluded that this gives evidence to suggest that his current toe troubles and foot pain are at least as likely as not a service-connected condition. In light of the foregoing, the Board finds that the Veteran's bilateral foot disorders did not have their onset in or were otherwise due to his active service, including a right toe injury therein, and thus service connection is not warranted. In reaching this decision, the Board finds the February 2016 and August 2017 VA opinions of record highly probative. In this regard, the examiners considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided complete rationales, relying on, and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In contrast, the Board affords the opinion from the podiatrist less probative weight. Importantly, the podiatrist's opinion relies on a backhoe injury from October 1985 as reported by the Veteran. However, while the Veteran may be competent to report such an injury, the Board finds this report is not credible. Specifically, the Veteran had already reported two separate and unsubstantiated injuries to the feet. His reports were actually refuted by the STRs. In this regard, the severe nature of the injuries and reported lengthy treatment with profiles, are such that they would have been included in the treatment records. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder). Notably, there is no indication that there are missing STRs or that the record is otherwise incomplete. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Moreover, the Veteran underwent a VA examination in June 1986, where his feet were reported normal. Rather, the record reflects the first complaint and treatment for foot pain occurred in December 2014. Consequently, as the September 2018 opinion was based on an incorrect factual basis, the Board affords it little probative weight. In this regard, the Board has considered whether service connection on a presumptive basis for arthritis is warranted. However, as the above evidence shows, the Veteran was not diagnosed with and did not manifest arthritis until 2016. Further, there are no complaints of mechanical foot pain until December 2014, many years after his separation from service. Therefore, although he has reported experiencing pain since service, the record contradicts his claims and presumptive service connection for a chronic disease, including on the basis of continuity of symptomatology, is not warranted. Additionally, in July 2005, the Veteran was noted to have radiating pain down his left lower extremity into his left foot beginning the day before. Notably, he has been noted to have back pain that radiates down his left lower extremity. See June 2016 Lumbar Spine CT. He also has been diagnosed with diabetic neuropathy in his feet. See February 2018 VA Treatment Note. However, the Veteran is not service connected for a lumbar spine disability or diabetes. Thus, service connection for such symptoms as part of the disease picture for such disabilities is not warranted. In reaching this decision, the Board has considered the Veteran's assertions that his bilateral foot disorders had their onset in service or are otherwise related to his service, and notes that he is competent to report experiencing pain and identifying the onset of symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds the Veteran's reports to be not credible, as discussed. As a result, the Veteran's statements are themselves, apart from the medical evidence, not sufficiently probative to rise to the level of equipoise. Consequently, the Board finds that bilateral foot disorders are not shown to be causally or etiologically related to any disease, injury, or incident during service. Therefore, service connection for such is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of service connection for bilateral foot disorders. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Entitlement to service connection for ED. 7. Entitlement to service connection for a left hip disorder. The Veteran also contends that he has ED and a left hip disorder that are related to his active service, and thus service connection is warranted. In this regard, he generally contends ED should be service connected without offering any argument. Turning to the left hip disorder, he reported that his hip was "bumped" in service. Initially, the Veteran has a diagnosis of ED beginning in March 2004 after the removal of a hydrocele, thereafter noting "impotence, organic origin." The record also reflects complaints of left hip pain beginning February 2017 with a June 2017 MRI showing cystic changes at the acetabular roof likely reactive secondary to early or mild degenerative arthropathy, and abnormal morphology of the anterior acetabular labrum suspicious for labral tear. However, turning to an in-service event, injury, or disease, his service treatment records are silent referable to ED or a hip disorder. Further, the Veteran has not provided competent lay or medical evidence that his ED or hip disorder began in service, or provided any other information relating these diagnoses to service. Rather, the Veteran merely asserted that he wanted service connection for ED and a hip disorder without providing any further information. January 2018 VA Form 21-526EZ, Fully Developed Claim. In this regard, the duty to assist is not a one-way street; a claimant cannot stand idle and fail to cooperate. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Importantly, as stated above, the Veteran's ED was first noted in the records in March 2004, nearly 20 years after his separation from service. It was also noted to be related to a hydrocele and organic in nature, belying service involvement. Likewise, his left hip pain was first reported in 2017, more than 30 years after service, with only mild arthritis suggested at that time. These treatment records do not place the onset of symptoms in service or within a year of service. Rather, the only evidence relating the disorders to service are the Veteran's unsupported assertions. The Veteran has not been provided with a VA medical examination and/or opinion regarding his claims for service connection for ED and a left hip disorder; however, such is not necessary in the instant case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, there is no credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, the Veteran's mere conclusory generalized lay statement that a service event or illness caused his current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the instant claims. Consequently, the Board finds that neither ED nor a left hip disability is shown to be causally or etiologically related to any disease, injury, or incident during service. Therefore, service connection for such disorders is not warranted. In reaching this determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of service connection for ED and a left hip disorder. Accordingly, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating 8. Entitlement to a compensable rating for bilateral hearing loss. The Veteran generally contends that his bilateral hearing loss is more severe than the currently assigned disability rating contemplates. However, after a review of the record, the Board finds that the Veteran's hearing symptoms and acuity is wholly contemplated by the currently assigned rating. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The period on appeal for the Veteran's increased rating claims begins January 4, 2018, the date VA received his claim for an increased rating, plus the one-year look-back period. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran's service-connected bilateral hearing loss has been assigned a noncompensable rating under 38 C.F.R. § 4.85, DC 6100, as of August 25, 2015. In this regard, ratings of hearing loss range from noncompensable or 0 percent to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In April 2017, the Veteran underwent a VA audiological examination during the "look-back" period. At such time, he reported that he had difficulty hearing from a distance and on the phone. The pure tone thresholds in decibels in the right ear at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 25, 40, 45, 45, respectively. The pure tone thresholds in decibels in the left ear at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 25, 35, 45, 55, respectively. No exceptional pattern of hearing loss was shown. The examiner noted that the pure tone threshold average in the right ear was 39 decibels and the average in the left ear was 40 decibels. Speech discrimination was 96 percent in the right and 100 percent in the left. These audiometry test results equate to Level I hearing bilaterally. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing bilaterally results in a noncompensable rating. The Veteran then underwent another VA examination during the appeal period in January 2018. At that time, he actually showed improved hearing acuity, with pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz that were 20, 35, 40, 50, in the right ear, respectively, and 25, 35, 45, 45, in the left ear, respectively. No exceptional pattern of hearing loss was shown. The examiner noted that the pure tone threshold average in the right ear was 36 decibels and the average in the left ear was 38 decibels. Speech discrimination was 96 percent in the right and 100 percent in the left. These audiometry test results equate to Level I hearing bilaterally. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing bilaterally results in a noncompensable rating. VA treatment records reflect the Veteran's complaints of bilateral hearing loss and the use of hearing aids. However, such do not reflect audiometric findings that suggest that a higher degree of impairment of hearing acuity exists at any point during the appeal period. Consequently, the Board finds that audiometric testing conducted throughout the appeal period shows findings consistent with a noncompensable rating under DC 6100. To the extent that the Veteran contends that his bilateral hearing loss is more severe than currently evaluated, the Board observes that, while he is competent to report symptoms capable of lay observation, to include difficulty hearing from a distance and on the phone, he is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable rating under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, supra; Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Despite the foregoing, the Board acknowledges the Veteran's aforementioned reports of the difficulties associated with his bilateral hearing loss. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable rating are not met. See Lendenmann, supra. The rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA's audiometric tests are designed to measure. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran has not otherwise described functional effects that are considered exceptional, or that are not otherwise contemplated by the assigned evaluation. Id. Thus, his complete disability picture is compensated under the rating schedule. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period, and assigning staged ratings is not warranted. Therefore, a compensable rating for bilateral hearing loss is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Propriety of the May 2015 severance of service connection for a TBI. The Veteran contends that the May 2015 severance of service connection for residuals of a TBI was improper. Specifically, he contends that he sustained a TBI when he fell down a flight of stairs in service, hitting his head on a radiator. Initially, the Veteran's STRs note that in January 1985, after drinking alcohol an hour before, he fell while running down a flight of stairs. He sustained an injury to the left side of his forehead. It was not noted whether there was any loss of consciousness at the time, but he complained of a headache without dizziness or vomiting. Imaging of his skull was within normal limits. His September 1985 separation examination noted a seven-millimeter raised bony area from past trauma, and that he had a "knot" that did not seem to be healing. However, that separation note stated there was no loss of consciousness, and a concurrent mental status evaluation was normal. Shortly after separating from service, the Veteran underwent a VA examination in June 1986. He reported at that time that he may have been unconscious for a minute after the fall, and the knot on his head was still painful. He reported a history of very occasional headaches. The examiner noted a small subcutaneous swelling on the left side of the forehead, but also that there were no neurological deficits. Then, he underwent another examination in February 1997. At that time, he reported he was unconscious for 30 to 40 minutes after the fall, waking up in the emergency room. He also stated that since that time he had shooting pains in his head, roughly three to four times per week on the left side and constant pain on the top, with occipital headaches as well. This examiner however, also found the Veteran had normal neurological and psychiatric observations, and noted the headaches were tension headaches. The Veteran was seen in July 2000 at a VA Medical Center, reporting that he fell recently and hit the back of his head three days earlier. Since that time, he was having headaches and dizziness with neck pain, and he was slightly nauseated the day before he was treated. He reported he lost consciousness for five minutes. Later, in April 2001, he reported having headaches on and off for about two months, but that he also had headaches before that. Then, in May 2006, the Veteran was again treated for a head contusion after he was assaulted and kicked in the head. There was no loss of consciousness noted, but he was nauseated after the assault and vomited. In November 2010, the Veteran filed a claim for service connection for a head injury. In an April 2012 rating decision, the AOJ granted service connection for the residuals of a TBI. The grant was based primarily on January 2012 and February 2012 VA examinations. At the former examination, the Veteran reported that he slipped and fell down some stairs, and he was out for two minutes, and was taken to the hospital where he had some shooting pains. The examiner endorsed the Veteran with having "moderately severely impaired judgment," indicating that his substance use played a major role in his judgment. He also endorsed three subjective symptoms of a TBI, but again focused on the effect substance use had on his function. He endorsed neurobehavioral effects of irritability, lack of motivation, and verbal aggression at times. Importantly, the examiner then stated that based on the screening, there was no finding of cognitive impairment due to a TBI. The examiner stated rather that the Veteran needed to be evaluated for substance use, and that was not likely due to TBI. At the February 2012 examination, the Veteran reported that after the in-service fall he was unconscious for at least five minutes, and that he was having symptoms of a concussion, and given a "severe" rating. The Veteran reported many symptoms that he believed were caused by a TBI, but the examiner opined that a TBI diagnosis was not possible at that time. In this regard, she stated it would be based solely on his provided history, and he needed a neuropsychiatric analysis. The AOJ scheduled a neuropsychiatric analysis in March 2012, but the Veteran did not show. After recognizing the examinations of record did not include a diagnosis of a TBI, the AOJ proposed to sever service connection based on that error. Thereafter, the Veteran underwent another VA examination in September 2013. At that time, the examiner stated that the Veteran did not have, nor ever had, a diagnosis of a TBI. The examiner included a report of the Veteran's in-service fall and head injury, and noted his reports of loss of consciousness. However, the examiner noted the records did not include any loss of consciousness. The examiner endorsed the Veteran with having the same facets of a TBI as the January 2012 examination, with the additional symptom of mild memory loss. The examiner concluded that "per the review of the records and examination, he had a head injury but not a TBI." Further, per records he had headaches before his injury, and he also had polysubstance abuse history, and the mood symptoms, irritability, problems with attention and concentration, and insomnia were related to substance use. The examiner concluded that there was no diagnosis of a TBI because there was no pathology to render a diagnosis. After the AOJ had completed the severance of service connection, the Veteran initiated an appeal. However, he also filed new applications for service connection. In February 2017, a TBI screening related to Gulf War service was completed, which was positive for a TBI indication. However, the Veteran did not have Gulf War service. Further, the screening merely identifies symptoms, deficits, and indicators of a TBI, as were previously identified in the examinations. Nonetheless, a periodic review examination was scheduled in June 2018 to determine the severity of the TBI. The examination was performed by the same examiner who completed the September 2013 examination. The examiner noted there was a TBI diagnosis from 2018 of record. The Veteran described his in-service head injury again, but stated that he lost consciousness and woke up in the hospital. He also reported he was diagnosed with a TBI by VA in 2011. The examiner performed a review of the current severity of his TBI residuals, noting the Veteran was primarily focused on his rating. The examiner concluded that "[f]or the VA established diagnosis of traumatic brain injury, there is no change in diagnosis. At this time the condition is active." Based on the foregoing, a remand is necessary in order to obtain an opinion regarding the nature of the Veteran's in-service head injury, and whether it resulted in a TBI. In this regard, the June 2018 examiner clearly believed a TBI diagnosis was established by VA, as opposed to being in controversy. The examiner notably did not cite to her previous September 2013 opinion in the records reviewed. The Veteran submitted a private medical opinion in August 2021, which did not provide an opinion as to whether a TBI resulted from the in-service head injury. Rather, the opinion cited to the above evidence, and stated that the evidence showed he had a TBI, notably with the September 2013 examiner refuting her own opinion. However, the record is not clear that the examiner was in fact, refuting her own opinion, and the other opinions of record cited by the physician did not include a diagnosis of a TBI. Further, no opinion of record addresses the head trauma suffered by the Veteran after his separation from service. Consequently, the record is unclear as to whether the Veteran's in-service head injury resulted in a TBI, and an opinion is necessary to resolve the doubt in this case. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, a depressive disorder, or a substance use disorder. The Veteran contends he has an acquired psychiatric disorder that is directly due to his active service, or is secondary to his TBI. In this regard, the Veteran reported that he witnessed in-service stressors including witnessing a man have his legs run over and amputated by a truck, and that he saw a "British soldier" drop his gun which discharged and wounded the soldier in the face. He stated both these events occurred in November 1984. See January 2015 Statement in Support of Claim for PTSD. The AOJ submitted the first event to the Joint Services Records Research Center for corroboration, and the stressor was not corroborated. In this regard, the service member identified by the Veteran was injured in an accident; however, he was driving a truck that was hit by a passenger car, and he was not run over by a tracked vehicle as the veteran described. However, the AOJ did not attempt to corroborate the second identified stressor, and thus on remand an attempt should be made to corroborate this stressor. Likewise, the Veteran reported in an April 2015 treatment note that a "couple of guys tried to molest" him in the bathroom once. He stated he reported the incident, and the soldiers were punished. Thus, on remand the AOJ should contact to the Veteran to obtain more information regarding this reported personal assault, providing him with the information and evidence necessary to substantiate his claim for PTSD based on personal assault. Additionally, the record includes a July 2018 VA psychiatric examination, wherein the Veteran was diagnosed with insomnia. However, the examination did not address any of the other known psychiatric diagnoses of record including depression, anxiety, and PTSD, nor did it include any etiological opinion. In this regard, the record is not clear as to the nature and etiology of the Veteran's psychiatric disorders, and thus, a VA psychiatric examination should be scheduled for the Veteran to clarify the nature and etiology of any current psychiatric disorders. The August 2021 private opinion included an opinion referable to the acquired psychiatric disorders. Specifically, the opinion stated that the substance use disorder and anxiety were due to the residuals of his TBI. Thus, the resolution of the appeal referable to the severance of service connection for a TBI will necessarily affect the outcome of this claim, and it should attend that claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue may have a "significant impact" upon another, the two claims are inextricably intertwined). Further, the opinion was predicated on the idea that the Veteran's substance use began only after his TBI, and prior to that, he used alcohol and marijuana socially only. However, the Veteran reported that his alcohol use began at age 14, and was progressive from there, to where he was drinking excessively at age 17. See November 1996 VA Treatment Record. Thus, if a TBI is found to have occurred in service, the VA examiner should clarify whether the substance use disorder is due to the TBI or whether it is separate and distinct form the TBI. In this regard, as described in the preceding section, the record conflicts as to the etiology of the Veteran's cognitive symptoms, and such have at times been attributed to the substance use disorder. See e.g. February 2015 VA Treatment Record (instructing the patient of changes in his brain from smoking crack cocaine and drinking alcohol); see also August 2013 VA Treatment Record (noting memory problems could be due to TBI or previous heavy alcohol use). 3. Entitlement to service connection for OSA. The Veteran contends that he has OSA that is caused by his TBI. In the August 2021 opinion, the physician opined that OSA was at least as likely as not due to a TBI because the Veteran did not have other risk factors, a TBI caused low level of hypocretins which has been related to OSA, the frontal lobe damage from the TBI is also found more prevalent in people with OSA, and medications taken for his headaches are known risk factors for OSA. Again, this opinion relies on the TBI to be service-connected, and thus is dependent on that appeal. Further, the examiner identified Gabapentin as a medication which is a risk factor for OSA, and noted it was prescribed for his migraines. However, Gabapentin was prescribed for the Veteran's foot disorders, which are not service connected. See February 2018 Podiatry Outpatient Note. Thus, it was improper for the physician to cite that medication in the opinion. Additionally, the physician noted smoking was a risk factor for OSA as well, but he attributed the Veteran's smoking habit to his TBI. However, the Veteran began smoking at age 18, long before his head injury. See May 2011 Psychological Assessment. Accordingly, the August 2021 opinion does not include an adequate rationale. Therefore, if service connection for a TBI is restored, a new opinion should be obtained as to the relationship between the TBI and OSA. 4. Entitlement to service connection for a headache disorder. The Veteran contends that he has a headache disorder which began during his active service. Specifically, he reported that his headaches began after his fall in service. In this regard, the August 2021 private opinion stated that the Veteran has diagnoses of tension headaches, cervicogenic headaches, and migraine headaches. The physician continued to opine that the tension headaches and migraine headaches were caused by the TBI, and the cervicogenic headaches were at least as likely as not related to the Veteran duties in service as a heavy machine operator. However, upon review, the record is unclear as to the nature and etiology of the Veteran's headache disorder. In this regard, the headache history is generally described in the preceding section regarding a TBI. In brief, a June 1986 VA examination noted a history of very occasional headaches only, without identifying the nature of his headaches. Then, in a February 1997 VA examination the Veteran stated he has had shooting pains in his head since the fall injury, but that his headaches were probably tension headaches. In a June 2011 VA examination, he reported he only got headaches when he wore a hat, and that they were related to the "knot" on his forehead. Then, an October 2013 VA examination diagnosed migraine headaches, which were stated to have begun in 1984 after the fall and injury to the head. However, shortly thereafter, in November 2013 another opinion was offered which stated the headaches as noted on active duty are not consistent with migraines and are specifically noted to be a result of neck stiffness. Therefore, the opinion concluded the current migraines were less likely than not related to headaches on active duty. Finally, in March 2018, a VA examination diagnosed migraines including migraine variants that were less likely than not due to his active service. The examiner noted that previous TBI examinations indicate no complaints of headaches or sensitivity to light or sound including from January 2012, February 2012, and August 2013. Thus, the current migraines were less likely than not related to the TBI. Notably, in a May 2016 VA treatment record, the Veteran complained of severe headaches since 1984. He stated he continued to have migraines with aura, some nausea, photophobia, and phonophobia, and he complained of a knot in the back of his head since the 1984 fall, with memory issues. However, the Veteran hit the front left of his head in the fall of 1984, and he hit the back of his head when he fell in 2000. Thus, there is a question as to whether a later fall may have caused some or all of his current headache disorder. Further, in April 2017 treatment records, it's noted that his headaches usually start in the back of his head and then radiate vertex and frontalis. The treatment note also suggests that they are nearly always associated with cervical discomfort. Similarly, the August 2021 physician opined that the Veteran's duties in service could have caused cervical spine damage that caused headaches. Accordingly, a remand is necessary to clarify the diagnosis and etiology of the Veteran's headache disorders. The Veteran should be scheduled for a VA examination, at which time the examiner should identify all current headache disorders, including migraines, tension, or cervicogenic, and provide an etiological opinion regarding each current disorder. 5. Entitlement to a TDIU due to service-connected disabilities. Finally, the Veteran also contends that his service-connected disabilities preclude him from securing and following substantially gainful employment. However, as above, as any decision regarding the claim for restoration of service connection for a TBI, as well as the other claims remanded herein, could impact the outcome of the Veteran's entitlement to a TDIU. This claim must also be remanded. See Harris, supra. The matters are REMANDED for the following action: 1. Provide the appellant with the information and evidence necessary to substantiate a claim for service connection for PTSD based on personal assault. 2. Attempt to verify the Veteran's claimed in-service stressor of witnessing a British soldier discharge a rifle at himself in November 1984 at Grafenwoehr Training Area through any appropriate source. All requests and responses should be associated with the record. 3. Forward the record to an appropriate VA clinician to provide an opinion regarding the incurrence of a TBI in January 1985. The record and a copy of this Remand must be made available to, and reviewed by, the clinician. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion. After a review of the record, the examiner should opine whether the Veteran clearly and unmistakably DID NOT sustain a TBI from the fall and head injury in-service in January 1985. A rationale for any opinion offered should be provided. 4. After completing the above development, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed acquired psychiatric disorders. The record, to include a copy of this Remand, must be made available to by the examiner and all indicated tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Identify all of the Veteran's acquired psychiatric disorders that meet, or have met, the DSM-5 diagnostic criteria at any time beginning in January 2015, even if such have resolved or are asymptomatic. In this regard, the examiner should consider the diagnoses of PTSD, depression, anxiety, and substance use disorder in the record. (B) If a diagnosis of PTSD is rendered, the examiner should offer an opinion as to whether such is at least as likely as not (i.e., a 50 percent or greater probability) the result of a verified in-service stressor. The examiner should consult the record in order to determine if the incident involving the British soldier has been verified by the AOJ. The examiner should not provide a speculative opinion on an unverified stressor. (C) For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, the Veteran's military service. (D) If a diagnosis of TBI is rendered, the examiner should opine whether any diagnosed acquired psychiatric disorder, including a substance use disorder, was caused or aggravated by the TBI. A rationale for any opinion offered should be provided. 5. If the first opinion finds a TBI was sustained in service, forward the record to an appropriate VA clinician to provide an opinion regarding the etiology of OSA. The record and a copy of this Remand must be made available to, and reviewed by, the clinician. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion. After a review of the record, the examiner should opine whether OSA is caused or aggravated by the TBI. The examiner should consider the August 2021 private medical opinion. A rationale for any opinion offered should be provided. 6. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his headache disorders. The record, to include a copy of this Remand, must be made available to by the examiner and all indicated tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Identify all of the Veteran's headache disorders that have been present any time pertinent to the appeal, to include migraines, tension headaches, and cervicogenic. (B) For each currently diagnosed headache disorder, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, the Veteran's military service. (C) If a diagnosis of TBI is rendered, the examiner should opine whether any diagnosed headache disorder was caused or aggravated by the TBI. A rationale for any opinion offered should be provided. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.