Citation Nr: 21014429 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-02 273 Oh DATE: March 12, 2021 ORDER Service connection for an acquired psychiatric disability, to include other specified trauma and stressor related disorder, is granted. Service connection for a bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for kidney cancer is remanded. Entitlement to service connection for bladder cancer is remanded. Entitlement to a rating in excess of 20 percent for arthritis of the left foot with Charcot joint is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The competent and credible evidence is at least in equipoise as to whether the Veteran has a psychiatric disability that is related to a personal assault during service. 2. The Veteran has not had a bilateral hearing loss disability for VA purposes at any point during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include other specified trauma and stressor related disorder, have been met. 38 U.S.C. §§ 101, 1131, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304 (2020). 2. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1153, 1154(a), 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to July 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. This matter was remanded in September 2019 for additional development. The record reflects that the Veteran's service-connected disabilities may have prevented him from working during the appeal period. See September 2012 Vocational Rehabilitation Counseling Report. Because a TDIU rating is inherent in any claim for an increased rating, it has been added as an issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board recognizes that in the Remand portion below, additional records are being requested from the Social Security Administration (SSA). However, as explained below, the Veteran specifically stated that he was receiving SSA disability in relationship to his foot and kidney disabilities. Therefore, the records are not relevant to the issues of service connection for an acquired psychiatric disability or for a hearing loss disability. Additionally, the issue of entitlement to service connection for an acquired psychiatric disability is being granted herein, and the issue of entitlement to service connection for a bilateral hearing loss disability is being denied for absence of a current disability (based on a VA examination conducted two months prior to this decision). Therefore, the Board finds there is no prejudice in deciding these issues as the outstanding records are not relevant to them. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Service connection for an acquired psychiatric disorder, to include other specified trauma and stressor related disorder, is granted. During his May 2019 Board hearing, the Veteran testified that he “took a beating” during his first year of service and was jumped by six guys as part of a hazing. His thumb was broken as a result. He continued to have nightmares of the incident for a long time. He also began to abuse drugs and alcohol shortly thereafter, and began receiving psychiatric treatment in 1990. During his January 2020 VA psychiatric examination, the Veteran denied being treated for psychiatric illnesses prior to or during his time in the military. He began receiving substance abuse treatment in the late 1980s and was hospitalized in 1995 following a suicide attempt. He stated that in his first year of service, he was “beat to hell” as part of a hazing and that he was unable to defend himself against 10 men. He broke his thumb and missed the President’s inauguration as a result of the injury. The VA examiner noted the Veteran’s report of being physically assaulted and harassed during service was an adequate Criterion A event and is related to personal trauma. She also noted a number of childhood traumas that were also related to personal assault. She ultimately diagnosed other specified trauma and stressor related disorder, noting that the Veteran did not report the full extent of PTSD symptoms needed for a full diagnosis of PTSD. Finding the Veteran’s reports credible, she concluded that his diagnosis was related to events that occurred while on active duty as well as due to childhood sexual abuse, but that the military event “impacts him more to this day.” The VA examiner found no reason to question the Veteran’s credibility and neither does the Board. In view of the totality of the evidence, including the VA examiner’s finding that the Veteran’s report of ongoing symptoms directly relate to the personal assault he experienced during service, the Board finds that service connection for an acquired psychiatric disorder is warranted. Gilbert, 1 Vet. App. at 53-56. 2. Service connection for a bilateral hearing loss disability is denied. The Veteran contends that he currently experiences hearing loss as a result of exposure to acoustic trauma while in service. The Veteran’s military occupational specialty (MOS) was cook. He reports that he was exposed to constant loud noise and vibration from the engine room while cooking. Sensorineural hearing loss, an organic disease of the nervous system, is considered by VA to be a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies 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. In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service connection for a current hearing loss disability is not precluded under 38 C.F.R. § 3.385 even where hearing was within normal limits on audiometric testing at separation from service. Id.; see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). On June 2010 VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 20 25 20 25 LEFT 20 15 10 20 35 Speech audiometry revealed speech recognition ability of 100 percent in the right and left ears. The examiner noted that the Veteran’s hearing loss is consistent with a history of noise exposure and the aging process and thus opined that his hearing loss is at least as likely as not related to military service. On December 2015 VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 25 20 25 LEFT 25 15 15 20 30 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 100 percent in the left ear. Although the examiner noted a significant threshold shift between the Veteran’s service enlistment and service separation, no etiological opinion was provided since the Veteran’s hearing loss was not considered a disability. On January 2020 VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 20 25 LEFT 25 15 15 20 30 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. Upon review of the above, the Board finds the Veteran has not met the threshold of hearing loss required to be considered impaired for VA purposes at any time during this appeal. All of the threshold levels in the 500, 1000, 2000, 3000, and 4000 hertz (Hz) frequencies were below 40 decibels; no three of these frequencies showed thresholds of 26 decibels or greater; and speech recognition scores utilizing recorded Maryland CNC word lists were 94 percent or greater. The Board notes the speech recognition score of 94 percent in the Veteran’s left ear during the January 2020 VA examination. However, pursuant to38 C.F.R. § 3.385, only speech recognition scores using the Maryland CNC Test that are less than 94 percent will be considered a hearing loss disability for VA purposes. As stated above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Therefore, evidence must show that at some point during the current appeal period the Veteran has the disability for which benefits are being claimed. The Board recognizes that the Veteran is competent to report his hearing difficulty and that there are positive causation opinions linking his difficulty hearing to his service. Here, however, as noted above, the evidence does not establish that he has experienced a diagnosable hearing loss disability of either ear that meets the criteria of 38 C.F.R. § 3.385 at any time during the current appeal period. In the absence of a current disability, the analysis ends, and the claim for service connection for a bilateral hearing loss disability cannot be granted. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, 3 Vet. App. at 225. In conclusion, the preponderance of the evidence shows that the Veteran has not had a diagnosed disability of bilateral hearing loss at any time during the current appeal period. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. This claim is denied. The Veteran is strongly encouraged to file another claim for service connection for bilateral hearing loss disability if his hearing loss worsens in the future. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for arthritis of the left foot with Charcot joint is remanded. 2. Entitlement to service connection for kidney cancer is remanded. During his January 2020 VA psychological examination, the Veteran reported receiving SSA disability benefits for his foot and kidney disabilities. Because the Veteran’s SSA records may reasonably contain information relating to the issues on appeal, a remand is required to obtain his SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Additionally, with respect to the Veteran’s increased rating claim for his left foot disability, VA examinations must include estimated ranges of motion during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA foot examinations of record do not fully comport with the requirements of Sharp despite the RO’s attempt to obtain an addendum opinion from the VA examiner. See January 2020 VA foot examination and September 2020 addendum opinion. Thus, remand is necessary for a new VA foot examination. 3. Entitlement to service connection for bladder cancer is remanded. 4. Entitlement to a TDIU is remanded. The Veteran contends that his bladder cancer is secondary to his kidney cancer and must therefore be remanded as it is inextricably intertwined with the issue of service connection for kidney cancer. The matter of entitlement to TDIU is also inextricably intertwined with the remanded issues; accordingly, it must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). 1. Request directly from the SSA relevant records, including determinations and medical records, regarding any claim for disability benefits. All attempts to fulfill this development should be documented in the claim file. If the records are unavailable, it should so be noted on the record and the reason for unavailability should be provided. 2. Provide the Veteran appropriate notice of VA’s duties to notify and assist regarding how to substantiate a claim for entitlement to TDIU, to include providing him a VA Form 21-8940. The Veteran should assist in the matter by providing the requested information. 3. Thereafter, arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected left foot disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Matta, 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.