Citation Nr: 21021596 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-15 906A DATE: April 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to an initial compensable rating for Bell’s Palsy is remanded. Entitlement to a rating in excess of 10 percent for chronic patellofemoral syndrome of the left knee is remanded. Entitlement to a rating in excess of 10 percent for degenerative changes of the right wrist is remanded. Entitlement to an initial compensable rating in excess of posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total rating based upon individual unemployability (TDIU) for the appeal period prior to October 30, 2020 is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a left lower sciatic disorder, to include as due to a lumbar spine disorder and/or left knee chronic patellofemoral syndrome, is remanded. Entitlement to service connection for a left upper extremity radicular disorder, to include as due to a cervicothoracic spine disorder, is remanded. Entitlement to service connection for erectile dysfunction, to include as due to a lumbar spine disorder, is remanded. Entitlement to service connection for a cervicothoracic spine disorder, to include as due to a lumbar spine disorder and/or left knee chronic patellofemoral syndrome. is remanded. Entitlement to service connection for headaches, to include as due to a cervicothoracic spine disorder, is remanded. FINDING OF FACT 1. At no time during the pendency of the claim does the Veteran have bilateral hearing loss for VA purposes, and the record does not contain a recent diagnosis of such disability prior to the Veteran’s filing of a claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1974 to May 1994, to include service in Southwest Asia. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for entitlement to a TDIU, either expressly raised by the Veteran or reasonably raised by the record, is part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has asserted that he is unable to work due to the combined effects of his service-connected disabilities. A December 2020 rating decision granted entitlement to a TDIU, effective October 30, 2020, based upon his PTSD. Accordingly, in light of the Court's holding in Rice, the issue of entitlement to a TDIU for the appeal period prior to October 30, 2020 has been raised by the record and is within the jurisdiction of the Board. Harper v. Wilkie, 30 Vet. App. 345 (2018). Service Connection – Bilateral Hearing Loss The Veteran contends that he has bilateral hearing loss that is related to service. Specifically, the Veteran’s representative argues that his hearing loss is ongoing and worsened over time. See VA 646 Statement of Accredited Representative in Appealed Case, June 9, 2016. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. Impaired hearing will be considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. See 38 C.F.R. § 3.385. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that §§ 1110 and 1131’s requirement of the existence of a present disability for VA compensation purposes cannot be considered arbitrary); see also McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim). Consequently, the evidence of record must show that the Veteran currently has the disability for which benefits are being claimed. However, as the record does not reflect a current diagnosis of bilateral hearing loss for VA purposes, the cornerstone element of service connection has not been met, and service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). VA treatment records do not indicate the Veteran complained of, or was treated for, bilateral hearing loss nor do they document diagnosis for bilateral hearing loss for VA purposes. The Board acknowledges the Court’s holding in Saunders but does not find a basis for determining that there is bilateral hearing loss that results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). With regard to his claim for bilateral hearing loss, the Board notes the Veteran complained of difficulty hearing at a February 2012 private evaluation by Dr. P.Y. However, service treatment records are silent for complaints of, treatment for, or a diagnosis of bilateral hearing loss for VA purposes while the Veteran was in active service. Additionally, the results of audiometric testing during service demonstrated that the Veteran had normal hearing acuity. In October 2012, the Veteran was afforded a VA examination for his bilateral hearing loss. Audiometric testing results at this time did not demonstrate a bilateral hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. A review of the post-service evidence of record does not show that the Veteran has been diagnosed with bilateral hearing loss disability for VA purposes. In a private evaluation by Dr. P.Y. in February 2012, the provider opined that the Veteran had “40% hearing loss” in both ears that was “more likely than not directly and causally related to the Veteran’s military service. However, the Board notes that Dr. P.Y. did not conduct or provide audiogram testing results that showed bilateral hearing loss for VA purposes as required by 38 C.F.R. § 3.385. Moreover, Dr. P.Y. noted that there was whispered word testing conducted from a distance of five feet, and spoken word stimuli testing. However, these tests similarly do not show bilateral hearing loss for VA purposes. The Board acknowledges the statements of the Veteran as to the existence and etiology of his decreased hearing acuity, and acknowledges that the Veteran is competent to give evidence about what he experienced. For example, he is competent to discuss the fact that he experiences symptoms of difficulty hearing. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to report his current symptoms, as a lay person he does not have the education, training, experience to diagnose or opine as to the etiology of the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, supra. Therefore, as the evidence of record shows that the Veteran does not have current bilateral hearing loss for VA purposes, the Board concludes that service connection is not warranted, and no further discussion of the remaining elements is necessary. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”); see also Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Increased Rating – Bell’s Palsy, Left Knee, Right Wrist, PTSD and TDIU With regard to the Veteran’s claims for increased ratings for Bell’s palsy, a left knee chronic patellofemoral syndrome, right wrist degenerative changes, and PTSD, the Board notes that additional relevant VA treatment records and December 2020 DBQ Cranial Nerves, PTSD, Wrist and Knee reports were associated with the claims file after the issuance of the April 2014 statement of the case. A December 2019 PTSD DBQ report was also added to the record after the issuance of the April 2014 statement of the case. However, the agency of original jurisdiction (AOJ) did not issue a supplemental statement of the case. Neither the Veteran nor his representative submitted a waiver of AOJ consideration. A January 2021 letter to the Veteran and his representative inquired as to whether he would waive initial AOJ consideration of this newly received evidence; the Veteran did not reply to this letter. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case must be furnished to the Veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the AOJ to suspend, this requirement. 38 C.F.R. § 20.1304(c). Therefore, the Board has no choice but to remand these claims so that the AOJ can consider the newly associated evidence in the first instance. The Veteran's claim of entitlement to a TDIU is inextricably intertwined with the increased rating claims being remanded herein, as the outcome of such claim may impact the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Therefore, adjudication of the TDIU claim must be deferred. 2. Service Connection – Tinnitus The Veteran generally contends that he has tinnitus that is related to service. Specific argument in support of this appeal has not been provided. The Veteran submitted a February 2012 private evaluation by Dr. P.Y. At that time, Dr. P.Y. opined that tinnitus was more likely than not directly and causally related to acoustic trauma sustained during military service. The Board finds the February 2012 private medical opinion inadequate to decide the claim. In this regard, Dr. P.Y. failed to provide supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran was afforded a VA examination for his claimed tinnitus in October 2012. At that time, the examiner opined that the Veteran’s tinnitus was less likely than not related to his active service. In this regard, the examiner stated that tinnitus was reportedly a symptoms within the past couple of years and that current research did not support delayed onset of tinnitus after noise exposure. However, this examiner did not provide an adequate rationale for this opinion. Id. Accordingly, the Board concludes that the Veteran should be afforded a new VA examination to determine the nature and etiology of his tinnitus. 3. Service Connection – Lumbar Spine Disorder The Veteran generally contends that he has a lumbar disorder that is related to service. Specific argument in support of this appeal has not been provided. The Veteran submitted a February 2012 private evaluation by Dr. P.Y. At that time, the Veteran reported that his low back symptoms began during active service and continued since. Dr. P.Y. opined that his low back disorder was chronic and an adaptation relative to his service-connected left knee disorder and that it was more likely than not directly and causally related to his military service. The Board finds the February 2012 private medical opinion inadequate to decide the claim. In this regard, Dr. P.Y. failed to provide supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, supra. The Veteran was afforded a VA examination for his claimed lumbar spine disorder in October 2012 and again in September 2019. At that time, the examiner opined that the Veteran’s low back disorder was less likely than not related to his active service. In this regard, the examiner stated that the low back disorder was noted only once in the Veteran’s claims file and he reported no recurrent back pain at his November 1993 separation examination. The September 2019 VA examiner opined the Veteran’s lumbar spine disorder was less likely than not related to his active service, to include a specific exposure event experienced by the Veteran during his service in Southwest Asia. The September 2019 VA examiner noted that overuse and inflammation are risk factors for degenerative arthritis of the lumbar spine and noted the Veteran had a lot of physical activities during service in Southwest Asia, and that exposure events are not known to cause arthritis. However, specific rationale was not provided for these opinions. Id. As noted above, additional relevant VA treatment records and a September 2019 Back DBQ report were associated with the claims file after the issuance of the April 2014 statement of the case. The AOJ did not issue a supplemental statement of the case, and neither the Veteran nor his representative submitted a waiver of AOJ consideration. A January 2021 letter to the Veteran and his representative inquired as to whether he would waive initial AOJ consideration of this newly received evidence; the Veteran did not reply to this letter. Therefore, the Board has no choice but to remand this claim so that the AOJ can consider the newly associated evidence in the first instance. 38 C.F.R. § 20.1304(c). 4. Service Connection – Left Lower Sciatic Pain, Left Upper Extremity Radicular Pain, Erectile Dysfunction, Cervicothoracic Spine Pain, and Headaches The Board notes that the Veteran submitted a February 2012 private evaluation by Dr. P.Y. for the claims of entitlement to service connection for left lower sciatic pain, left upper extremity radicular pain, erectile dysfunction, cervicothoracic spine pain, and headaches. At that time, Dr. P.Y. opined that such conditions were related to his military service. Dr. P.Y. opined the Veteran’s erectile dysfunction was due to the Veteran’s lumbar spine disorder, that the left sciatic pain was due to the Veteran’s lumbar spine disorder and service connected left knee disorder, that cervicothoracic spine pain was due to the Veteran’s lumbar spine disorder and left knee disorder resulting in chronic and constant adaptation and compensation for an altered gait and weight shifting, that left upper extremity radicular pain was due to the cervicothoracic spine pain and chronic discopathy and that headaches were due to his cervicothoracic condition and chronic discopathy. The Board finds the February 2012 private medical opinions inadequate to decide the claims. In this regard, Dr. P.Y. failed to provide supporting rationale for the conclusions reached. Nieves-Rodriquez v Peake, supra. Additionally, the Veteran was afforded VA examinations for his claim of entitlement to service connection for headaches in October 2012. At that time, the examiner opined that headaches were less likely than not related to the Veteran’s military service as the Veteran’s complaints of headaches in service were in conjunction with a viral syndrome. The Veteran was also afforded a VA examination for his headaches in September 2019. At that time, the examiner opined that it was less likely than not that the Veteran’s headaches were related to his service in Southwest Asia, that the headaches may be associated with a traumatic brain injury or neuronal dysfunction and that the Veteran did not offer evidence of any such head trauma that would predispose him to such condition. However, the VA examiners failed to provide an adequate rationale for the conclusions reached. Id. In addition, the October 2012 VA examiner appears to have relied upon on an inaccurate fact; namely, that the Veteran’s complaints of headaches in service were related to a viral syndrome. The Board notes that the Veteran had several complaints of, and treatment for headaches during active service unrelated to viral syndromes. See October 1988 service treatment record (STR); see August 1991 STR; see November 1993 STR. As noted above, additional relevant VA treatment records were associated with the claims file after the issuance of the April 2014 statement of the case. However, the AOJ did not issue a supplemental statement of the case and neither the Veteran nor his representative submitted a waiver of AOJ consideration. A January 2021 letter to the Veteran and his representative inquired as to whether he would waive initial AOJ consideration of this newly received evidence and the Veteran did not reply to this letter. Therefore, the Board has no choice but to remand these claims so that the AOJ can consider the newly associated evidence in the first instance. 38 C.F.R. § 20.1304(c). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed tinnitus. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner must opine whether the Veteran’s tinnitus is at least as likely as not related to an in-service injury, event, or disease. The examiner should be sure to address the February 2012 private medical opinion submitted by the Veteran. A RATIONALE FOR ALL OPINIONS EXPRESSED SHOULD BE PROVIDED. 3. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed lumbar spine disorder. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner must opine whether the Veteran’s lumbar spine disorder is at least as likely as not related to an in-service injury, event, or disease. The examiner must opine whether it is at least as likely as not that the Veteran’s lumbar spine disorder was caused or aggravated by his service connected left knee chronic patellofemoral syndrome. The examiner should address the February 2012 private medical opinion submitted by the Veteran and the May 1986 complaint of and treatment for a low back strain following the lifting of heavy objects during service. A RATIONALE FOR ALL OPINIONS EXPRESSED SHOULD BE PROVIDED. 4. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed headaches. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner must opine whether the Veteran’s headaches is at least as likely as not related to an in-service injury, event, or disease. The examiner should specifically address the Veteran’s complaints of headaches in January 1988, October 1988, August 1991, September 1992 and November 1993. A RATIONALE FOR ALL OPINIONS EXPRESSED SHOULD BE PROVIDED. 5. Following the above development and VA examinations, if deemed necessary, the RO should schedule the Veteran for any additional examinations by an appropriate clinician to determine the nature and etiology of his claimed left lower sciatic disorder, left upper extremity radicular disorder, erectile dysfunction, and cervicothoracic spine disorder. 6. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, given an opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if in order. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, Associate 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.