Citation Nr: 21074358 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-27 458 DATE: December 15, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to an increased rating in excess of 60 percent for a back disability is denied. FINDINGS OF FACT 1. The Veteran's psychiatric disability was not incurred in or due to his time in service. 2. The Veteran does not have bilateral hearing loss for VA purposes that was incurred in or due to his time in service. 3. The Veteran does not have tinnitus that was incurred in or due to his time in service. 4. The Veteran's back disability is not manifested by unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for the establishment of service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for the establishment of service connection for tinnitus are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for an increased rating in excess of 60 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1989 to June 1989 and from January 1991 to June 1991 with periods of service in the Army National Guard. These matters are on appeal from an April 2013 rating decision by a Department of Veterans Affairs (VA) regional office (RO). These matters were previously before the Board and were remanded for further development in November 2018. This development included providing the Veteran with examinations for all of his claimed conditions. However, in July 2021, the Veteran stated he did not want to report to his examinations and that he would like his appeal to be decided on the record. The Board notes the Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) since April 27, 2011. SERVICE CONNECTION Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. Psychiatric Disorder Claim A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the veteran's description of the claim, the symptoms the veteran describes and the information the veteran submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Pursuant to Clemons, the Board has taken an expansive view of the claims of entitlement to service connection for a mental health disability and re-characterized it as entitlement to service connection for an acquired psychiatric disorder. The Veteran has been diagnosed with a mental health disability. The Veteran's records show he has been seen for PTSD, panic disorder, and depression. (See e.g. August 2015 treatment record). Social Security Administration (SSA) records indicate the Veteran was found to be disabled due to his mental health. The Veteran's complete service treatment records (STRs) have not been completely associated with his record as they were found to be unavailable. However, of record is a May 1991 examination, performed one month prior to the Veteran's separation from service. In this examination, while endorsing continuing back problems, the Veteran denied depression or excessive worry and did not note suffering from any ongoing mental health problems. The Veteran has said that he was in Iraq from January 1991 to June 1991 and while there, he was in charge of moving ammunition throughout the country at night with no escort. However, the Veteran's military personnel records indicate he was in Germany from January 1991 to June 1991. The Veteran submitted a private psychiatric examination in May 2011. The examiner stated a review of records was done, but it is unclear whether this included the Veteran's military file. During service, the Veteran reported his military occupational specialty (MOS) was ammunition specialist. The Veteran reported that during his time in service, the Veteran was charged with moving ammunition at night with no escort during the Gulf War. The Veteran reported there was one incident in which the truck went under a low bridge and was unable to clear it, the truck hit the bridge, and the ammunition fell out onto the road. The examiner opined the Veteran had PTSD, panic disorder, and depression. The examiner opined the Veteran's symptoms were "as likely as not service-connected." Dr. P.Y. in June 2011 stated that he did not treat PTSD but that he had seen several hundred PTSD patients. This examiner diagnosed the Veteran with PTSD, saying it was more likely than not causally related to his time in service. However, Dr. P.Y. is a chiropractor and is not competent to provide an opinion as to the etiology of a psychiatric disability, which he himself stated he did not treat. The Board places little probative weight on the opinion of the May 2011 examiner because the statements of the Veteran of what happened in service, is insufficient, in of themselves, to corroborate his stressor. The examiner, while stating a records review was done, did not indicate whether a review of the Veteran's military record had been performed and did not address the fact the Veteran did not indicate ongoing psychiatric problems in his separation examination, that the location of the stressor seems to be different than what is noted in his military personnel records. Additionally, while the Veteran has said his stressor occurred in Iraq during his period of service in 1991, his record indicates he was in fact serving in Germany. While an examination for his PTSD performed by a VA examiner may have clarified some of these issues and shed more light on the Veteran's in-service psychiatric problems, the Veteran declined such an examination. Therefore, based on the record available, the Board finds the most probative evidence does not indicate the Veteran's mental health disability was incurred in or due to his time in service. Bilateral Hearing Loss and Tinnitus Claims For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 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. The threshold for normal hearing is 0 to 20 decibels. The Veteran's record does not indicate he has been diagnosed with hearing loss for VA purposes, though the Veteran reported difficulty hearing. In September 2007, the Veteran's hearing was found to be within normal limits. Dr. P.Y. a chiropractor, in June 2011 stated the Veteran had been exposed to acoustic trauma while in service and that he suffered from progressive bilateral hearing loss and tinnitus. This examiner stated the Veteran's testing was performed in a very quiet room and in a noisy room. The examiner opined the Veteran's hearing loss and tinnitus were more likely than not related to his time in service. The Board places little probative value on this opinion as a chiropractor does not have the necessary testing to perform hearing tests and does not practice in audiological medicine. This examiner also did not indicate whether a puretone threshold and Maryland CNC test were performed. Therefore, his opinion is of little value on this matter. In a September 2019 audio consultation, the Veteran reported tinnitus that was on and off with the onset about four to five years ago. His puretone thresholds within normal limits for all frequencies. The Board finds the objective evidence of record does not indicate the Veteran has bilateral hearing loss for VA purposes that was incurred in or due to his time in service. The Veteran's MOS while in service does not indicate exposure to excessive noise and there is no indication the Veteran was in combat. Additionally, no competent examiner has determined any diagnosed hearing loss was due to his time in service. The Veteran, as a layperson, may be competent on a variety of matters concerning the nature and cause of his disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Court has found a lay person competent to identify tinnitus which is a disorder that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). However, by the Veteran's own statement in September 2019, his tinnitus began around 2014 or 2015, decades after his separation from service. This gap in time from his time in service to when he first began to experience symptoms, weighs against the Veteran's claim that his tinnitus was incurred in or due to his time in service. Therefore, the claims will be denied. Pertaining to all of the Veteran's service connection claims, the Board understands and has considered that not all of his STRs are of record. However, without a currently diagnosed hearing loss disability, there can be no finding of service connection. Additionally, the Veteran stated himself his tinnitus began years after his separation from service. Regarding his claim for a mental health disability, of record is the examination performed just a month before his separation. Even if the Veteran had mentioned mental health trouble in STRs that are not of record, in this examination the Veteran does not indicate ongoing mental health problems, reasonably showing that any mental health problems noted in the missing STRs had resolved. Increased Rating Claim Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that during the pendency of the appeal VA amended some of its' criteria for rating musculoskeletal disabilities effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). However, the Board finds that none of the amendments change how this Veteran's neck and back disabilities are rated. The Board has reached this conclusion because it finds that none of the amendments actually changes how his disabilities are rated under all applicable Diagnostic Codes because the specific rating criteria were not amended or because the Veteran's disabilities are not ratable under the amended criteria. The Veteran's back disability is rated as 60 percent disabling under DC 5237. The Veteran contends his back disability is worse than indicated by his current rating. Under DC 5237, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Moreover, the Formula for Rating Intervertebral Disc Syndrome provides a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. In June 2011, an examination reported the Veteran had constant moderate to severe back pain with flexion limited to 5 degrees on both active and passive motion. The examiner also noted the Veteran suffered from sciatic radicular pain in the lower left extremity. The Boards notes the Veteran is in receipt of the highest available rating pertaining to IVDS. Thus, the only symptoms that would provide the Veteran a higher, 100 percent rating, is if he were found to have unfavorable ankylosis of the entire spine. While the Veteran's medical record indicates he clearly suffers from pain, discomfort, and limited motion in his back, his records do not indicate he suffers from unfavorable ankylosis of the entire spine. Therefore, the claim will be denied. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Regarding the claims above, the Board acknowledges the Veteran's statements that he seeks treatment for his claimed conditions and that he believes his back disability is worse than indicated by his 60 percent rating. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the nature, etiology, or severity of his health conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board lends more weight to the objective evidence of record. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his conditions were due to his time in service or worse than indicated by his assigned disability rating. The denial of a higher rating does not mean the Board thinks his back does not bother him. Clearly, his back is a problem, which is the reason for the 60 percent rating. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.