Citation Nr: 21008825 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 20-14 788 DATE: February 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. New and material evidence having been added to the record, the appeal to reopen a claim for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and mild cognitive impairment, is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and mild cognitive impairment, is remanded. FINDINGS OF FACT 1. The Veteran does not have a current hearing loss disability. 2. The evidence does not show that the Veteran’s tinnitus began in service or is due to service. 3. The evidence added to the record since the May 1995 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. Tinnitus was not incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1968 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Janesville, Wisconsin. The Veteran seeks to reopen a claim for service connection for posttraumatic stress disorder. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims (CAVC) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. The Veteran appears to have a past history of posttraumatic stress syndrome, but the current records do not show a diagnosis for posttraumatic stress disorder. Instead, the record shows symptoms of PTSD and a current diagnosis of mild cognitive impairment. The Board acknowledges that PTSD and mild cognitive impairment are very different psychiatric disabilities; however, the Veteran’s spouse reported that the Veteran’s current symptoms included memory issues, easily agitated, upset and irritable, poor sleep, nightmares, feeling distance, avoidance of triggers, anxiety, isolation, and paranoia. These symptoms overlap with PTSD symptoms. For these reasons, the Board finds that recharacterizing the issue more broadly is allowable as mild cognitive impairment reasonably encompasses the Veteran and his spouse’s description of the claim. Therefore, the issue was recharacterized above as service connection for acquired psychiatric disabilities, to include PTSD and mild cognitive impairment. Service Connection 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has a hearing loss disability that is related to his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran was afforded a Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) in April 2016. The Veteran’s hearing loss was not found to be a disability under 38 C.F.R. § 3.385. The Veteran did not have auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 of 40 decibels or greater. He also did not have auditory thresholds of 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz, or greater. He also did not have speech recognition scores using the Maryland CNC Test that were less than 94 percent. The examiner concluded that the Veteran had normal hearing in both ears. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had a hearing loss disability at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran believes he has a current diagnosis of bilateral hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex as it requires the ability to interpret medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 2. Entitlement to service connection for tinnitus The Veteran filed a claim for entitlement to service connection for tinnitus. Tinnitus has been variously defined. It is “a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane”). Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. Kelly v. Brown, 7 Vet. App. 471, 472 (1995). “Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin.” 59 Fed. Reg. 17,297 (April 12, 1994). The Board observes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). During an April 2016 Hearing Loss and Tinnitus DBQ, the Veteran reported that he believes his tinnitus began in the 1980’s, but he is unsure of the circumstance of onset. The examining audiologist opined that with normal/near-normal audiometry results and the onset in the 1980’s, it is less likely his tinnitus is a result of service. This evidence warrants probative weight as the examiner had access to and reviewed the evidence in the claims file and provided an etiology opinion supported by an adequate rationale and evidence in the claims file. The Veteran himself notes that his tinnitus began several years after service. Although tinnitus is a condition which is capable of lay observation, the Veteran has observed that his tinnitus began in the 1980’s and not during service or shortly thereafter. Due to the onset in the 1980’s and the Veteran having normal to near normal hearing, the examiner opined that it was less likely than not that it is related to service and provided a reasoned rationale. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for tinnitus; therefore, the claim must be denied. 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; 38 C.F.R. § 3.102. New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) (“Justus does not require the Secretary [of VA] to consider the patently incredible to be credible”). 9. New and material evidence having been added to the record, the appeal to reopen a claim for a psychiatric disability, to include posttraumatic stress disorder, is granted. Service connection for PTSD was denied in a May 1995 rating decision. The Agency of Original Jurisdiction (AOJ) determined that there was no clear cut diagnosis for PTSD and not enough details provided to verify the Veteran’s stressors. Since the May 1995 rating decision, evidence added to the record includes a new diagnosis of mild cognitive impairment disorder by a neuropsychologist. The neuropsychologist opined that the Veteran’s medical history suggested cerebrovascular changes may be contributing to cognitive decline. See March 2017 VA treatment record. A discussion about the overlapping symptoms of PTSD and mild cognitive impairment is included in the introduction section above. As there is evidence of a current disability and a possible relationship to the Veteran’s service-connected disabilities, the Board concludes that a previously identified defect has been cured, and that the claim may be reopened. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. The Veteran was afforded an examination in May 2019 for his peripheral neuropathy. The examiner noted that the Veteran had mild paresthesias and numbness in both upper extremities, but it was not possible to say with certainty that he has peripheral neuropathy of the upper extremities. The May 2019 examiner opined that in order to confirm the presence and or severity of a peripheral neuropathy or peripheral nerve entrapment, an EMG/NCV is necessary. The Board finds that further testing is needed. Therefore, a remand is needed so that further testing can be completed. 3. Entitlement to service connection for an acquired psychiatric disability, to include mild cognitive impairment, is remanded. In March 2017, a VA neuropsychologist diagnosed the Veteran with mild cognitive impairment. He also noted that his medical history suggested that a cerebrovascular change may be contributing to cognitive decline. The neuropsychologist went on to provide recommendation which included providing the Veteran with further diabetes mellitus education from his medical providers and that the Veteran may benefit from engaging in individual services to address diabetes management. As the Veteran’s service-connected diabetes mellitus may be contributing to his mild cognitive decline, the Board finds that an addendum opinion is needed. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his peripheral neuropathy of his upper extremities. The examiner must review the claims file. Obtain an EMG or NCV test to determine if the Veteran’s paresthesias and numbness in both upper extremities are due to peripheral neuropathy of the upper extremities. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s peripheral neuropathy of the upper extremities at least as likely as not proximately due to service-connected diabetes mellitus? The examiner’s attention is directed to the May 2019 examiner’s statement that if the Veteran has a polyneuropathy of the upper extremities, which is quite possible, it would be more than 50 percent likely that is related to his diabetes. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s mild cognitive impairment is at least as likely as not proximately due to service-connected diabetes mellitus. An opinion is needed as to whether the Veteran’s mild cognitive impairment is aggravated beyond its natural progression by service-connected diabetes mellitus. The clinician’s attention is directed to the March 2017 statement by a VA neuropsychologist who stated that the Veteran’s medical history suggested that a cerebrovascular change may be contributing to cognitive decline. This neuropsychologist went on to recommend further education about diabetes mellitus and assistance in addressing diabetes management. 3. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.