Citation Nr: 21007503 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-19 581A DATE: February 9, 2021 ORDER Service connection for an acquired psychiatric disorder, variously diagnosed as major depressive disorder, other specified trauma- or stressor-related disorder, and alcohol use disorder, is granted. Service connection for a left knee disability is denied. A compensable disability rating for bilateral hearing loss is denied. A finding of total and permanent disability for purposes of entitlement to non-service-connected pension benefits is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The competent and credible evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disorder, variously diagnosed as major depressive disorder, other specified trauma or stressor-related disorder, and alcohol use disorder, began in or is otherwise related to service. 2. A left knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and none of the competent evidence indicates that the disability may be associated with an in-service injury, disease, or event. 3. The objective medical evidence shows that the Veteran’s bilateral hearing loss was productive of hearing acuity no worse than Level II in each ear. 4. It is at least as likely as not that the Veteran’s disabilities prevented him from following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the appellant’s favor, the criteria for an award of service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an award of service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for an award of a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.85, 4.86, Diagnostic Code (DC) 6100. 4. Resolving reasonable doubt in the appellant’s favor, the criteria for a finding of total and permanent disability for purposes of entitlement to non-service-connected pension benefits have been met. 38 U.S.C. §§ 101(11), 107(b), 1521; 38 C.F.R. §§ 3.1, 3.2, 3.3, 4.17. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1987 to September 1991. His decorations included the Rifle Expert Badge, the Good Conduct Medal, and the Southwest Asia Service Medal (with one star). Unfortunately, he died in May 2019, while the present appeal was pending. His surviving spouse has been substituted as the appellant for purposes of processing his claims to completion. See March 2020 VA notification letter; 38 U.S.C. § 5121A. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in August 2014 and November 2014 by the Department of Veterans Affairs (VA) Regional Offices in Oakland, California and St. Paul, Minnesota. In June 2018, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See October 2020 supplemental statement of the case. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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 (1990). 1. Service connection for an acquired psychiatric disorder is granted. The appellant seeks to establish service connection for an acquired psychiatric disorder on the basis of substitution. Here, the Board finds that the Veteran had an acquired psychiatric disorder prior to his death. See, e.g., January 2017 VA Form 21-0960P-2 (noting a diagnosis of severe recurrent major depressive disorder with anxious distress features). Accordingly, the element of a current disability is established. The Board further concludes that the Veteran’s disability began during or is otherwise related to active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The evidence in favor of the claim includes a January 2017 opinion by Dr. R.W. that the Veteran’s major depressive disorder with anxious distress features more likely than not began in service and continues to be aggravated by service-connected conditions. Dr. R.W. noted that lay statements from the Veteran’s father, T.K., and the Veteran’s friend, K.C., indicated that the Veteran was different when he returned home from active duty in that he was angry, depressed, withdrawn, anxious, and unfocused. Dr. R.W. also noted that researchers have found a strong association between tinnitus and hearing loss problems as strong predictors of mental illness. See also October 2020 VA medical opinion (noting that the Veteran’s diagnosis of other specified trauma or stress-related disorder is at least as likely as not related to the Veteran’s military service). The evidence against the claim includes an unfavorable April 2013 VA medical opinion to the effect that the Veteran’s acquired psychiatric disorder, to include alcohol dependence and depressive disorder, was less likely than not incurred in or caused by service. The examiner reasoned that the Veteran denied exposure to direct combat or hostile military activity, and that he did not meet the criteria for posttraumatic stress disorder (PTSD) and his claimed stressors did not stem from fear of hostile military or terrorist activity as his divorces, loss of custody, unemployment and financial stressors were his primary areas of complaint and the reasons for his depressive symptoms. See also October 2020 VA medical opinion (noting that it is less likely than not that the Veteran’s unspecified depressive disorder and alcohol use disorder are less likely than not related to service). The Board finds the VA and private medical opinions in support of the Veteran’s claim are at least as probative as the negative VA opinions. Because the conflicting opinions give rise to a reasonable doubt, such doubt must be resolved in favor of the appellant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for an acquired psychiatric disorder, variously diagnosed as major depressive disorder, other specified trauma- or stressor-related disorder, and alcohol use disorder, is granted. 2. Service connection for a left knee disability is denied. The appellant also seeks to establish service connection for a left knee disability on the basis of substitution. The question for the Board is whether the Veteran had a left knee disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that while the Veteran had a current diagnosis of left knee osteoarthritis and medial collateral ligament strain, and evidence shows that he was treated for a left iliotibial band strain and left knee chondromalacia patella during service, the preponderance of the evidence weighs against a finding that his left knee disability began during service or was otherwise related to an in-service injury, event, or disease. A July 1993 post-service treatment record shows that the Veteran reported that he sustained an inward twisting injury to the left knee 2 months earlier. The assessment was probable chondromalacia patella with torn medical meniscus. A July 2013 VA examiner opined that the Veteran’s left knee disability was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The rationale was that the Veteran was seen in service for a left knee iliotibial strain which resolved and that his current left knee disability was one of internal derangement which occurred between 1994 and 1997 and was aggravated by a recent, post-service, fall. The July 2013 examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no medical opinions to the contrary. The appellant believes that the Veteran’s left knee disability is related to the in-service injury to the left knee. While the Veteran was competent to report symptoms of a left knee disability, such as pain, he was not competent to provide a nexus opinion with respect to the etiology of his disability. The issue is medically complex, as it requires knowledge of the musculoskeletal system and the development of osteoarthritis and medial collateral ligament strain years after service, with evidence of intervening injury. The record does not show that the appellant or the Veteran has or had the medical training or experience necessary to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Veteran’s left knee arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, is not shown to have manifested to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. There is no competent and probative evidence that the Veteran’s left knee arthritis was manifested to a degree of 10 percent or more within one year of separation from service, or that it is otherwise related to service. As such, service connection on a direct and presumptive basis is not warranted. In the absence of any competent and probative evidence of record indicating that the Veteran’s left knee disability may be associated with a disease or injury in service, the Board must find that the preponderance of the evidence is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. The appeal of this issue must be denied. 3. A compensable rating for bilateral hearing loss is denied. The appellant seeks to establish a compensable rating for bilateral hearing loss on the basis of substitution. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Hearing loss is evaluated under Diagnostic Code 6100. The condition is normally rated on the basis of controlled speech discrimination tests (Maryland CNC), together with the results of puretone audiometry tests. See 38 C.F.R. § 4.85. Ordinarily, the results of these tests are charted on Table VI, as set out in the Rating Schedule, to determine the appropriate Roman numeral designation (I through XI) to be assigned for the hearing impairment in each ear. These numeric designations are then charted on Table VII to determine the rating to be assigned. Id. See, e.g., Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (indicating that evaluations of hearing loss are determined by a mechanical application of the rating schedule). However, not all patterns of hearing loss are rated in this manner. For example, if the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the Roman numeral designation for that ear is taken from either Table VI or VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). See also 38 C.F.R. §§ 4.85(c) and 4.86(b) (indicating that alternative methodologies also apply when the examiner certifies that use of the speech discrimination test is not appropriate or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). For the reasons set forth below, the Board finds that a compensable rating for the Veteran’s service-connected bilateral hearing loss disability was not warranted. An April 2013 VA examination report reveals that the Veteran reported that he had increased difficulty in understanding conversations and television. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). His Maryland CNC speech recognition scores and puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 40 50 55 45 84 LEFT 40 45 45 45 44 84 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear; which, in turn, warrants a noncompensable disability rating under Table VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In light of the foregoing, it is the Board’s conclusion that the preponderance of the evidence is against the claim for a compensable rating for bilateral hearing loss. As set forth above, the only available audiometric reports demonstrate entitlement to nothing more than that. The Board acknowledges the lay evidence of record, including the Veteran’s assertions of increased difficulty in understanding conversations and television. He was competent to report such difficulties; however, as noted, disability ratings for hearing loss are derived from a mechanical application of the rating schedule. The functional impacts that the Veteran described are fully contemplated by the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching this conclusion, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, that doctrine is not for application. 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal of this issue must be denied. 4. A finding of total and permanent disability for purposes of entitlement to non-service-connected pension benefits is granted. The appellant seeks to establish entitlement to nonservice-connected disability pension benefits on the basis of substitution. For VA pension purposes, all veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanently and totally disabled. 38 C.F.R. § 4.17. Permanent and total disability exists if a veteran is unemployable as a result of disability reasonably certain to continue throughout the life of the person; or is suffering from (1) any disability that is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person, or (2) any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 C.F.R. § 3.3(a)(3)(vi)(B)(3), (4). Having reviewed all of the lay and medical evidence of record, the Board finds that the evidence is in relative equipoise as to whether the Veteran was permanently and totally disabled as a result of his disabilities. Evidence weighing in favor of the claim includes a July 2017 determination by the Social Security Administration that the Veteran was disabled due to his psychiatric disability and other unspecified arthropathies. In a November 2014 statement, the Veteran’s VA primary care physician opined that the Veteran was unable to work indefinitely due to medical conditions, to include pain management issues and conditions involving the knees and feet. See also January 2017 employability review by Dr. R.W. Based on the foregoing, the Board finds there is sufficient evidence of record to support a finding that the Veteran’s disabilities, both non-service-connected and service-connected, resulted in a permanent and total inability to following a substantially gainful occupation. Resolving reasonable doubt in the appellant’s favor, a finding of total and permanent disability for purposes of entitlement to non-service-connected pension benefits is warranted. The appeal of this issue is granted. REASONS FOR REMAND Entitlement to a TDIU is remanded. As explained above, the Board has granted service connection for an acquired psychiatric disorder. As that action may result in a new combined rating and alter the evidentiary basis for the TDIU claim, the Board will defer adjudication of the TDIU issue pending implementation of the Board’s decision with respect to the psychiatric claim. This matter is REMANDED for the following action: 1. Implement the Board’s decision to grant service connection for an acquired psychiatric disorder. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the appellant and her representative should be issued a   supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ragheb, Johnny 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.