Citation Nr: 21012559 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-20 216 DATE: March 4, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) throughout the appeal period is granted. Entitlement to a rating in excess of 70 percent for PTSD is denied. Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) is denied. REMANDED Entitlement to service connection for a bilateral eye disorder is remanded. FINDINGS OF FACT 1. A right knee disability was not manifested in service, and the preponderance of the evidence is against a finding that the Veteran’s current right knee disability is otherwise related to an event, injury, or disease in service. 2. A left knee disability was not manifested in service, and the preponderance of the evidence is against a finding that the Veteran’s current left knee disability is otherwise related to an event, injury, or disease in service. 3. Throughout the appeal period, the Veteran had at worst Level I hearing acuity in the right ear and Level I hearing acuity in the left ear; the rating criteria contemplate the Veteran’s hearing symptoms. 4. Throughout the appeal period, the Veteran’s PTSD has been productive of occupational and social impairment with deficiencies in most areas; total occupational and social impairment is not shown. 5. By February 2019 letter, the Veteran was asked to provide information necessary to adjudicate his claim of entitlement to TDIU, to include submitting a completed VA Form 21-8940; more than a year has lapsed since the initial request, and he has not submitted the requested evidence and information. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 4. Throughout the appeal period, the criteria for a 70 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411. 5. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411. 6. By failing to submit the requested information and/or forms for critical evidence needed to properly adjudicate his claim of TDIU, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C. §§ 5107, 7105(d)(5); 38 C.F.R. § 3.158(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1963 to October 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2014 and July 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in May 2018 when they were remanded for additional development. During the pendency of this appeal, a December 2020 rating decision granted an increased rating for the Veteran’s PTSD, rated 70 percent disabling, effective from July 11, 2019. The matters have been characterized accordingly. Service Connection 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran has a current diagnosis of bilateral knee strain. See July 2019 VA knee and lower leg conditions examination. The Veteran’s service treatment records are silent for treatment, findings, or diagnosis relating to the right or left knee. See, e.g., July 1969, April 1972, August 1983 report of medical examination. On July 2019 VA examination, the Veteran related that he developed knee pain in 1980 during service but was unable to recall any specific injuries. Regarding nexus, there is only one competent opinion of record, and it is against the claim. Specifically, in a July 2019 VA examination, a VA examiner opined the disability was less likely than not incurred in or caused by the claimed injury, event or illness. It was noted that the Veteran’s service treatment records did not show documentation of a knee disability or symptomatology during service, and the disability was not related to service. This opinion, which was based on a review of the relevant evidence of record and is supported by rationale, is highly probative. Notably, there is no competent medical opinion in support of the Veteran’s claim. To the extent the Veteran may be relating his bilateral knee disability to service, while he is competent to relate the onset of his bilateral knee pain during service, the Board finds that the Veteran is not credible. In this regard, while the Veteran contends that his bilateral knee symptomatology began in 1980 during his active duty service, his service treatment records do not reflect any complaints or treatment for either knee, including on August 1983 report of medical history and examination. The Board finds this highly probative in this case as the Veteran’s service treatment records otherwise reflect treatment for various other maladies during his active duty service, indicating the Veteran was willing to seek treatment and report his complaints for any symptomatology where it arose. To the extent the Veteran did not do so for his knees, the Board concludes that it is because the Veteran was not experiencing any symptomatology of either knee, which is consistent with the Veteran’s statements that he could not recall an injury of either knee during service. Hence, the Board finds the Veteran’s statements as to the onset of his bilateral knee symptoms during service to be not credible in this case. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating 3. Entitlement to a compensable rating for bilateral hearing loss. The VA Schedule for Rating Disabilities (Rating Schedule) provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist) including Puretone thresholds and speech discrimination (Maryland CNC test). See 38 C.F.R. § 4.85. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment in each ear. Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). On June 2019 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 25 30 40 50 LEFT 25 30 45 50 The average puretone thresholds were 36 in the right ear and 38 in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right and left ear. The Board notes that there is a May 2015 private audiometry report. Significantly, the May 2015 private audiometry report does not contain speech recognition scores using the Maryland CNC Test. Accordingly, the May 2015 private audiometry report and its findings are not adequate for rating purposes. See 38 C.F.R. § 4.85(a). The Board acknowledges the June 2015 lay statement from the Veteran’s spouse that he has difficulty hearing when spoken to in a soft voice, and that even his children have noticed his difficulty hearing. Applying the results of the June 2019 examination to Table VI produces a finding the Veteran had Level I hearing acuity in the right and left ear, warranting a noncompensable rating. An exceptional pattern of hearing impairment is not demonstrated. 38 C.F.R. § 4.86. As noted above, ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. On this basis, the Veteran is not entitled to a compensable rating as the preponderance of the evidence is against the claim. The Board acknowledges the statements that the Veteran’s hearing loss results in difficulty hearing softly spoken conversations, needing things repeated, and difficulty hearing on the telephone. These functional impairments are contemplated in the Rating Schedule. Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Therefore, a compensable rating for the Veteran’s bilateral hearing loss is not warranted at any point during the appeal period. 4. Entitlement to a rating in excess of 30 percent for PTSD prior to July 11, 2019. 5. Entitlement to a rating in excess of 70 percent for PTSD since July 11, 2019. The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula)), which provides for a 30 percent rating when the evidence shows occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating when the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when the evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). After a review of the evidence of record, resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to an increased 70 percent rating throughout the appeal period. In this regard, the Board notes that the Veteran’s symptomatology has been fairly consistent throughout the appeal period. For the period prior to July 11, 2019, the Veteran had a VA examination in August 2013. The examination noted the Veteran’s symptomatology included recurrent nightmares three to four times per week, irritability, impaired impulse control, depression, exaggerated startle response, anxiety, suspiciousness, and chronic sleep impairment. The evidence also includes a September 2013 Dr. J.A. private psychiatric assessment report noting the Veteran’s PTSD was manifested by periodic symptoms of depression and anxiety, major difficulties with relating to others, frequent conflict with family members, significant reduction in recreational activities, and moderate interference of functioning in many every-day situations. A November 2016 Dr. J.A. private psychiatric re-evaluation report noted the Veteran’s PTSD was manifested by periodic anxiety attacks, difficulty falling asleep, frequent nightmares and flashbacks, depressed mood, irritability, inability to concentrate, loss of interest in pleasurable activities, hypervigilance and exaggerated startle response. The Board notes that these symptoms and functional impairment are consistent with those found on July 11, 2019 VA examination, the basis for the increased 70 percent rating for the Veteran’s service-connected PTSD. Therefore, resolving any reasonable doubt in favor of the Veteran, the Board finds that a 70 percent rating is warranted for the Veteran’s service-connected PTSD throughout the appeal period. The Board finds that the preponderance of the evidence is against a finding a higher rating of 100 percent is warranted at any point during the appeal period. The evidence of record does not show total occupational and social impairment. Gross impairment of thought processes or communication has not been shown. There is no evidence of memory loss for names of close relatives, own occupation, or own name. See, e.g., June 2019 VA examination. Grossly inappropriate behavior has not been shown. In addition, no examiner or clinician has indicated any inability to perform activities of daily living, and neither the Veteran nor his spouse has reported such. In addition, persistent danger of hurting self or others has also not been shown. Accordingly, total occupational and social impairment has not been shown, and a 100 percent rating is not warranted for the Veteran’s PTSD at any period during the appeal. 6. Entitlement to TDIU. When evidence requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). In May 2018, the Board remanded the matter of entitlement to TDIU, in part to provide the Veteran a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) for his submission. In a February 2019 notice letter, the RO informed the Veteran that he may be entitled to compensation at the 100 percent rate if he was unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. The letter further directed the Veteran that “[i]f you believe you qualify, complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability.” The Veteran’s claim of entitlement to TDIU was denied by the RO in a December 2020 Supplemental Statement of the Case (SSOC). The SSOC noted that the Veteran was asked to submit a completed VA Form 21-8940. The SSOC states that [a]s of this date, you have not responded to our request for the VA Form 21-8940.” The evidence of record indicates that the Veteran retired in approximately 2004 after working as a mechanic for American Airlines. See February 2009 VA treatment record; see also February 2011 VA treatment record. To date, the Veteran has not submitted a VA Form 21-8940 or comparable statement containing the requested information. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him from securing or following a substantially gainful occupation, and the treatment he has received for the disability(ies). The veteran is further asked to supply information about his employment, including dates when his disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. VA Form 21-8940 also requests information regarding the veteran’s employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his last job, and whether the veteran has attempted to obtain employment since he became too disabled to work. The critical facts at this stage are clear. The Veteran has not provided the information or VA forms necessary for VA to adjudicate is claim of entitlement to TDIU. Although the record contains some information regarding his employment history, the Veteran has not provided all of the information necessary to adjudicate his claim for TDIU. The Board is presented with a less-than-complete-evidentiary picture, made so by the Veteran’s failure to cooperate. See Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“[t]he duty to assist is not always a one-way street.”); see also Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc). In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one-year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are “binding on all who seek to come within their sphere,” regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Hence, the Board has no recourse but to conclude that because of his failure to cooperate the Veteran has abandoned his claim. As such, the Board finds that the appeal must be denied. REASONS FOR REMAND 7. Entitlement to service connection for a bilateral eye disorder is remanded. This matter was previously remanded by the Board in May 2018 to secure a VA examination and opinion as to the nature and etiology of the Veteran’s bilateral eye disorder. The Veteran was afforded a VA examination in July 2019. The diagnoses were end stage glaucoma and cataract. It was opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury event or illness. However, the examiner further opined that the Veteran’s cataracts and glaucoma were not caused by service but were due to his age. Inasmuch as the July 2019 examiner provided a contradictory opinion, the Board finds that an addendum opinion is needed on remand. The matters are REMANDED for the following action: 1. Forward the Veteran’s claims file to the July 2019 VA medical examiner, if available, for an addendum opinion regarding the etiology of the Veteran’s bilateral eye disorder. The examiner is asked to clarify whether, based on a review of the claims file, whether it is at least as likely as not that any currently diagnosed bilateral eye disorder(s) are related to and/or had their onset during service. A complete rationale must be provided for all opinions expressed. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should provide a rationale for that conclusion. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.