Citation Nr: 21075984 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-01 217 DATE: December 22, 2021 ORDER Entitlement to service connection for bladder cancer is granted. Entitlement to an initial compensable rating for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran was presumed to have been exposed to the designated herbicide agents (Agent Orange) in service, and the Veteran has a diagnosis of bladder cancer. 2. A formal diagnosis of PTSD has been made and shown to be in full remission. Symptoms are not shown to be severe enough to interfere with occupational and social functioning or to require continuous medication. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bladder cancer are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a compensable disability rating for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1968 to March 1970 including service in the Republic of Vietnam. He was awarded the Combat Infantryman Badge. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision. In September 2021 a video conference hearing was held before the undersigned; a transcript is in the record. 1. Entitlement to service connection for bladder cancer. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Certain chronic diseases (to bladder cancer) may be service connected on a presumptive basis as due to exposure to herbicide agents if manifested in a Veteran who served in the Republic of Vietnam during the Vietnam Era. 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). The National Defense Authorization Act for Fiscal Year 2021 amended 38 U.S.C. § 1116 (a)(2) to include bladder cancer. See National Defense Authorization Act for Fiscal Year 2021, Pub. L. 116-283 (enacted January 1, 2021). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The record reflects that the Veteran served in Vietnam from August 1968 to July 1969. See Certificate of Release or Discharge from Active Duty (DD 214). The Veteran was first diagnosed with bladder cancer in February 2017. It is not in dispute that the Veteran has bladder cancer. His post-service treatment records show treatment for bladder cancer. Bladder cancer is now on the list of diseases that may be presumed to be service connected as due to exposure to herbicide agents if manifested in a Veteran who served in Vietnam. It is not in dispute that the Veteran service in Vietnam during the Vietnam era. Therefore, the Veteran is entitled to consideration of the instant claim under the presumptive provisions of 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). Applying those provisions, the Board finds that the Veteran's bladder cancer may be presumed to be service connected on the basis that it is due to his exposure to herbicide agents in Vietnam during the Vietnam Era. Accordingly, service connection for bladder cancer is warranted. 2. Entitlement to an initial compensable rating for PTSD. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and "staged" ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). PTSD is rated under Code 9411 and the General Rating Formula for Mental Disorders, which provide for a 0 percent rating when a mental condition has been formally diagnosed, but symptoms are not severe enough to either interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the United States Court of Appeals for Veterans Claims noted that the list of symptoms in the Board's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. When adjudicating psychiatric claims, the Board has an obligation under Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) to conduct a three-part "holistic" analysis. The first step of the analysis is to assess the "severity, frequency, and duration of the signs and symptoms" of the Veteran's condition. The second step is to quantify symptoms." The third step is to assign an "evaluation that most closely approximates that level of occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013) (holding that the disability rating schedule for psychiatric disabilities reflects "objectively-observable symptomatology," and "it is the severity of the effects of the symptoms as described by the examiner that determines the rating."). In March 2018, the RO granted service connection for PTSD and assigned a non-compensable rating, effective November 17, 2017, the date of receipt of an intent to file the claim. In January 2010, May 2014, and March 2018, VA outpatient screenings for PTSD and/or depression were negative. On March 2018 PTSD examination the diagnoses were PTSD and alcohol use disorder, each in full remission. The clinician noted that there were no symptoms of each diagnosis as each was in remission. The clinician indicated that there was no current occupational or social impairment. No symptoms were present at the time. Behavioral observations were that the Veteran's speech was clear, and he was polite, attentive, and engaged throughout the examination. Memory (remote, recent, and immediate) were intact. The Veteran was found to be able to manage his own financial affairs. The Veteran reported experiencing PTSD symptoms and drinking heavily following service in Vietnam. It was noted that these symptoms have been in full remission since at least 1980. It was noted that the Veteran was able to maintain activities of daily living. It was noted that the Veteran was not in any treatment. It was noted that employment was not impacted by psychological issues. In a March 2018 miscellaneous examination, the Veteran reported experiencing problems with alcohol following his service in Vietnam. The Veteran reported staying active during the day with yardwork, gardening, and sometimes golf. He reported being active in his church and engages in Bible study. He reported having friends. He reported no trouble with sleep and denied any recall of nightmares. On examination the Veteran was described as alert, soft-spoken, attentive, and engaged throughout. In a May 2018 statement, the Veteran's spouse described the Veteran as an isolationist, and he is constantly working on a project to keep busy. She described some irritable moments, and felt he was cutoff from family and close friends. She described him as usually anxious for the day and having difficulty just sitting and relaxing. He also often had trouble concentrating or paying attention to certain activities. At the September 2021 video conference hearing, the Veteran testified that the issues he experienced with alcohol following service had resolved. He stated he was bad around groups of people and prefers one on one interactions. He stated he was always on alert to his surroundings and locking doors. He denied having nightmares or intrusive thoughts. He stated he can attend family gatherings but finds them uncomfortable. He indicated he was not receiving treatment and did not feel his symptoms had gotten worse since he was last examined in 2018. The Veteran's PTSD is currently noncompensable. To receive a 10 percent rating for PTSD there would need to be a showing of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. The competent medical evidence shows the Veteran's PTSD and associated alcohol use disorder is in full remission. The Veteran's wife submitted a statement that the Veteran was an isolationist, and had difficulty relaxing. In September 2021 the Veteran testified that he prefers one on one interactions, and feels he is always on alert to his surroundings. On examination in March 2018 the clinician found the Veteran was able to perform activities of daily living without limitation, and that employment would not be impacted by psychological issues. The Board notes that the Veteran has indicated his symptoms have not worsened since that time, and that he has not sought treatment for PTSD since that time. Collectively, the competent evidence or record fails to show symptomatology indicative, analogous, or suggestive of the higher disability rating, as reflected above. See Mauerhan, 16 Vet. App. 436; Vazquez-Claudio, 713 F. 3d 112. The Board has considered the Veteran's contention that his PTSD is more severe than what is contemplated by a noncompensable rating. The Veteran is competent to report that which he discerns directly, to include his symptoms, behavior, and conveying opinions of clinicians that he heard directly. The Veteran neither possesses expert training to render findings as to clinical severity. 38 C.F.R. § 3.159 (a)(1). See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Although he and his spouse report irritability and social isolation, the Veteran is able to work on projects or recreation He reported being active in his church and with friends. He reported no trouble with sleep and denied any recall of nightmares. On examination the Veteran was described as alert, soft-spoken, attentive, and engaged without evidence of reduced concentration. No clinician or psychologist has indicated that the Veteran's PTSD was productive of occupational and social impairment even due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or indicated that the Veteran's symptoms were controlled by continuous medication. In summary, the Veteran's PTSD most nearly approximates that of a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. Accordingly, the preponderance of the evidence is against this claim and the appeal in the matter must be denied. REASONS FOR REMAND Entitlement to service connection for left ear hearing loss It is not in dispute that the Veteran currently has left ear hearing loss for VA purposes. See 38 C.F.R. § 3.385. It is conceded that the Veteran was exposed to significant noise in service. Whether the Veteran's current left ear hearing loss is related to service (to include conceded exposure to noise in service) is a medical question. The Board notes that when VA undertakes to obtain a medical opinion, it must obtain one that is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, it is noted that a lack of hearing loss shown in service is not fatal to a claim of service connection for a hearing loss claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). On March 2018 hearing loss examination, the Veteran was shown to have left ear hearing loss for VA purposes. The clinician opined that it was less likely than not that the Veteran's left ear hearing loss disability was related to service based on a lack of threshold shift during service. However, the clinician opined that there was a sufficient threshold shift on the right so as to warrant service connection. Hearing acuity tests obtained at entry on active duty in August 1967 and at discharge in January 1970 are of record. The Board acknowledges that it is not competent to evaluate this data, but from a lay perspective, there is some upward shift for both ears, and it is not clear from the VA opinion why a significant shift occurred on one side and not the other. Lastly, at the September 2021 video conference hearing the Veteran testified that both of his ears ring all the time. Notably the Veteran is service connected for tinnitus. Whether the Veteran's left ear hearing loss was caused or aggravated by his service-connected tinnitus is a medical question which requires a medical opinion. The matter is REMANDED for the following action: Arrange for an audiological evaluation of the Veteran (with audiometric studies) to ascertain the etiology, of his claimed left ear hearing loss disability. Following audiometric testing, interview of the Veteran, and review of his record (and acknowledging that the Veteran was exposed to substantial noise in service, and that the absence of a hearing loss disability shown on separation is not fatal to a claim of service connection for hearing loss), the examiner should: (a.) Report the results of official audiometry of the left ear. (b.) Comment on the significance of no threshold shifts in service as it relates to sustainment of injury and why the data shows a sufficient shift on the right and not on the left. (c.) Identify the likely etiology for the current left ear hearing loss disability found. Is it at least as likely as not (a 50 percent probability or greater) that the disability is etiologically related to the Veteran's service and acknowledged exposure to noise therein? (d.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's left ear hearing loss was caused or aggravated by his service-connected tinnitus? (e.) If a current hearing loss disability is determined to not be related to service (to include caused or aggravated by his service-connected tinnitus), identify the etiology considered more likely, and explain why that is so (citing to supporting factual data). The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.