Citation Nr: 21076695 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-35 920 DATE: December 27, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) and major depressive disorder is granted. Service connection for a right foot condition is denied. An initial disability rating evaluation in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for emphysema with spontaneous pneumothorax, status post apical wedge resection, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. THE VETERAN'S CONTENTIONS The Veteran contends that he currently has PTSD that had its onset in July to September 1971. See June 2011 Veteran's application for compensation and/or pension. Specifically, he stated that his stressor occurred while he was serving at Eglin Airforce Base and participated in rescue events related to an aircraft crash that occurred there. Id.; August 2021 correspondence. The Veteran also seeks service connection for a right foot condition and an initial higher rating for his service-connected tinnitus. See July 2015 Notice of Disagreement (NOD). FINDINGS OF FACT 1. Resolving doubt in the Veteran's favor, the Veteran has diagnoses of PTSD and major depressive disorder that are etiologically related to his service. 2. The evidence of record does not show that the Veteran has a current right foot condition. 3. For the entire appeal period, the Veteran is in receipt of a 10 percent rating, the schedular maximum under Diagnostic Code 6260, for his tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD and major depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right foot condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an initial rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from May 1970 to May 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). On the Veteran's July 2017 VA Form 9, he requested a Board hearing before a Veterans Law Judge. However, in August 2021, the VA received notice, through the Veteran's accredited representative, that the Veteran wished to withdraw his Board hearing request. As such, the hearing request is deemed withdrawn and the Board will adjudicate the issues on appeal. 1. Service Connection for PTSD and Major Depressive Disorder 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). With respect to PTSD, service connection requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred, unless the stressor is related to a veteran's fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f). Turning to the evidence of record, the Board notes that the record demonstrates that the Veteran has current psychiatric diagnoses. Specifically, February 2011 and August 2012 treatment records from private psychiatrist Dr. I.S. contain current diagnoses of PTSD, major depression, and generalized anxiety disorder. As Dr. I.S. is a practicing psychiatrist, the Board assumes that the diagnoses of PTSD, major depression, and generalized anxiety disorder were made pursuant to applicable Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria. See Cohen v. Brown, 10 Vet. App. 128 (1997). Accordingly, the Board finds the first requirement for service connectiona current disabilityto be satisfied. In regard to the next service connection element of an in-service incurrence or, for PTSD specifically, an in-service stressor, the Board notes that the Veteran's service treatment records (STRs) demonstrate that, in January 1977, the Veteran indicated that he suffered from depression or excessive worry. Additionally, as stated above in the Contentions section, the Veteran has indicated that he experienced a traumatic experience in service in regard to participating in rescue operations related to an aircraft crash. In a March 2013 rating decision notification letter, VA verified that the Veteran experienced a stressful incident in service. The Board does not disturb this finding and, accordingly, concludes that the service connection requirement for an in-service injury or event has been satisfied. In addition, with respect to PTSD alone, the Board finds that the Veteran experienced a stressor in service and this stressor actually occurred. Lastly, moving to the remaining requirement of a nexus between a current disability and service, the Board notes that, in October 2019, private psychologist Dr. C.M. opined that the Veteran's current psychiatric diagnoses of PTSD and major depressive disorder were at least as likely than not related to in-service traumatic stress. In support of her conclusion, Dr. C.M. indicated that she had conducted a clinical interview with the Veteran and reviewed his entire VA claims file. In addition, Dr. C.M. remarked that the Veteran's verified stressor of being part of rescue operations of an aircraft crash supported a diagnosis of PTSD. In light of the private treatment records noted above and Dr. C.M.'s medical opinion, the Board resolves doubt in the Veteran's favor and finds that the Veteran has diagnoses of PTSD and major depressive disorder that are related to his service. See 38 C.F.R. § 3.102. Accordingly, entitlement to service connection for both of these psychiatric disorders is granted. 2. Service Connection for a Right Foot Condition Unlike the above issue concerning PTSD and major depressive disorder, the Board concludes that service connection for a right foot condition is not warranted. As such, the Board denies the Veteran's claim. See 38 C.F.R. § 3.303. In reaching this conclusion, the Board notes that there is no evidence of record indicating that the Veteran has a current right foot condition. In the absence of proof of a current disability, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Specifically, in this case, VA and private treatment records associated with the Veteran's claims file do contain a diagnosis of a right foot disability at any point during or approximate to the claim period. Additionally, the Board notes that, during a May 2017 Decision Review Officer (DRO) conference, the Veteran indicated that he experienced intermittent pain in his right foot. However, the conference report does not indicate whether the Veteran elaborated that this intermittent foot pain was a symptom of a diagnosed disability. Nevertheless, in Saunders v. Wilkie, the U.S. Court of Appeals for the Federal Circuit held that pain alone, when causing functional impairment, may constitute a "disability" for VA compensation purposes, even if the pain is not with an accompanying diagnosis. 886 F.3d 1356, 1368 (Fed. Cir. 2018). Here, there is no indication that the Veteran's intermittent right foot pain caused the Veteran any functional impairment during the claim period. Accordingly, the Veteran's intermittent right foot pain may not constitute a disability for compensation purposes. In sum, there is no evidence that the Veteran experiences a current disability of the right foot. Thus, as the Veteran's claim does not meet the first requirement of service connectionthe requirement of a current disabilityit must be denied. See Brammer, supra. 3. Increased Initial Rating for Tinnitus The Veteran is currently in receipt of the 10 percent maximum schedular rating available for tinnitus. Under Diagnostic Code 6260, a 10 percent evaluation is the highest evaluation that can be assigned for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2). As there is no legal basis upon which to award a higher schedular disability rating for tinnitus, the Veteran's increased rating claim is denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Service Connection for Bilateral Hearing Loss 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, 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 Veteran's most recent VA examination regarding hearing loss was in January 2013. That examination indicated that the Veteran did not have hearing loss for VA purposes under 38 C.F.R. § 3.385. As the Veteran has not had an examination for his hearing loss since January 2013, the Board finds that a new VA examination is warranted to determine if the Veteran currently has hearing loss for VA purposes. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim). 2. Service Connection for a Left Knee Disability The Veteran has a diagnosis of degenerative joint disease of the left knee. See August 2010 private treatment record. Further, a private physician, Dr. J.R., stated that the Veteran's left knee degenerative joint disease was potentially related to a knee injury in service. See August 2020 Treatment Record, Jewett Orthopaedic Clinic. Additionally, Dr. J.R. indicated that if the Veteran had any significant injury to his left knee in service, then his current arthritic changes would be related to the in-service injury. Id. In reviewing the record, the Board notes that a VA examination has not been provided in connection with the Veteran's left knee service connection claim. As there is evidence that the Veteran has a left knee condition, which may be associated with his military service, a VA examination and medical opinion must be provided prior to adjudication of the Veteran's claim on its merits. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Service Connection for Emphysema with Spontaneous Pneumothorax, Status Post Apical Wedge Resection In January 2013, a VA respiratory examination indicated that the Veteran had a current diagnosis of emphysema and spontaneous pneumothorax, status post apical wedge resection. Following an examination of the Veteran, the VA examiner provided a negative nexus opinion. This negative opinion was based on the examiner's determination that medical records in the Veteran's claims file did not show evidence of structural pathology consistent with asbestosis (pleural calcification) as documented by clinical imagining and histology. However, the VA examiner did not consider the Veteran's contention that he was exposed to chlorobromomethane during service. See October 2011 VA Form 21-4138. As such, the Board finds that an additional VA medical opinion is warranted to consider whether the Veteran's emphysema with spontaneous pneumothorax, status post apical wedge resection, is related to chlorobromomethane exposure during service. In ordering remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports of chlorobromomethane exposure. Rather, the Board is merely requesting that the clinician on remand consider the Veteran's own descriptions of the history of his emphysema with spontaneous pneumothorax, status post apical wedge resection. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). 4. TDIU The Veteran's claim for a TDIU is inextricably intertwined with the pending evaluation of his newly service-connected PTSD and major depressive disorder. See October 2019 Dr. C.M. Independent Medical Evaluation Report. Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature, warranting remand. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to an appropriate VA clinician to provide a medical examination regarding the nature and etiology of the Veteran's bilateral hearing loss. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request and a physical examination should be conducted, to include an audiogram and speech discrimination tests. Thereafter, the clinician should state whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral hearing loss had its onset in, was caused by, or is otherwise related to service. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 2. Forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's left knee condition. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's left knee condition had its onset in, was caused by, or is otherwise related to service. In issuing the requested opinion, the clinician should specifically address the Veteran's diagnosis of degenerative joint disease of the left knee and Dr. J.R.'s opinion that the degenerative joint disease of the left knee is potentially related to his knee injury in service; and that if he had any significant injury to his left knee in service, then his current osteoarthritic change is related to that. See August 2010 letter from Dr. J.R. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 3. Forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's emphysema with spontaneous pneumothorax, status post apical wedge resection. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's emphysema with spontaneous pneumothorax, status post apical wedge resection, had its onset in, was caused by, or is otherwise related to service to include exposure to chlorobromomethane and asbestos during service. For the purpose of providing the opinion requested, the clinician is to accept as valid the Veteran's statements that he was exposed to chlorobromomethane and asbestos during service. Additionally, the clinician should state whether a nexus between the Veteran's emphysema with spontaneous pneumothorax, status post apical wedge resection and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time assessing the credibility of his statements). In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 4. After completing any development deemed necessary, readjudicate all of the issues pending on appeal, including the issue of entitlement to a TDIU. N. PETTINE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.