Citation Nr: 21021814 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-15 529 DATE: April 14, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for the Veteran's service-connected post-traumatic stress disorder (PTSD) is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral pes planus is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s PTSD has more nearly approximated social and occupational impairment which causes reduced reliability and productivity. 2. There is no currently diagnosed bilateral hearing loss disability for VA purposes. 3. The Veteran’s bilateral pes planus clearly and unmistakably existed prior to service, and the preponderance of the evidence shows that the Veteran’s disability was not aggravated beyond its natural progression by active duty service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability rating in excess of 50 percent for the Veteran's service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for establishing entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.303, 3.304(b), 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1986 to March 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2012 and November 2012 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in December 2019, it was remanded for additional development. Specifically, the RO was instructed to provide a release to the Veteran for any private records he may have pertinent to his PTSD claim; to obtain medical opinions regarding the Veteran’s claimed hearing loss and bilateral feet disabilities; and obtain any outstanding records. The RO requested the names and address of any private treatment examiners from the Veteran; however, the Veteran did not provide any additional information. The Board reminds the Veteran that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, it was incumbent upon him to cooperate with the VA in developing his claims. The RO provided the Veteran with appropriate examinations and obtained the required outstanding treatment records. As such, the Board finds that the AOJ substantially complied with the directives in the December 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran’s claims. Increased Rating—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). PTSD—Legal Criteria PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. In pertinent part, a 50 percent disability rating is warranted for 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted for 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. Finally, a 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought process 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; and memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Analysis Critically, the Board observes that the above-noted evaluation criteria for a 50 percent disability rating indicates an array of symptoms, which are likely sufficient to cause reduced reliability and productivity in both an occupational and social setting. Such symptoms need not rise to the level of activity preclusion, but rather negatively influence or impact upon work and social function to such an extent that they result in reduced reliability and productivity. The symptoms considered in determining the level of impairment under the Rating Schedule for PTSD are not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board has carefully reviewed the Veteran’s VA treatment reports, June 2017 VA PTSD examination, and the Veteran’s competent lay statements. In sum, these records show the Veteran has reported consistent psychiatric manifestations throughout the period of this appeal. The above-noted evidence shows the Veteran has experienced several significant symptoms and impairments, which include: intrusive memories, avoidance, irritable behavior, depressed mood, anxiety, chronic sleep impairment, mild memory loss, and a persistent negative emotional state. In this case, the evidence plainly establishes the Veteran’s psychiatric manifestations have resulted in reduced reliability and productivity in both occupational and social settings. The Veteran’s psychiatric manifestations have resulted in impairments that clearly diminish his consistency and dependability in these settings more than just occasionally. As such, the Board finds that even affording the Veteran the benefit of reasonable doubt, his disability picture most nearly approximates the criteria necessary for a 50 percent disability rating throughout the period of the appeal. There is no evidence of delusions, hallucinations, homicidal ideations, suicidal ideations, or grossly inappropriate behavior. There is also no evidence of neglect of personal appearance or hygiene; or illogical, obscure, or irrelevant speech. He has been able to perform activities of daily living and is oriented to person, time, and place. Additionally, the evidence does not show the Veteran experiences memory impairments of such severity that he forgets names of close relatives, his own occupation, or his own name. The evidence simply does not show that the social and occupational impairment from his PTSD has more nearly approximated deficiencies in most areas required for a 70 percent rating or the total impairment required for a 100 percent rating at any time during the period of the claim. For these reasons, the Board finds that the rating of 50 percent, and no more, is warranted throughout the period of the claim. As such, the Veteran’s claim for a disability rating in excess of 50 percent must be denied. Consideration has been given to assigning a staged rating; however, as explained above, the evidence does not suggest that the severity has fluctuated during the period of this appeal, so a staged rating is not appropriate for this claim. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). SERVICE CONNECTION—LEGAL CRITERIA Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in the examination reports are to be considered as “noted.” See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). This standard is further explained in 38 C.F.R. § 3.306(b), which provides that clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service condition underwent an increase in severity during service. That notwithstanding, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). In other words, the presumption of aggravation only arises “where the pre-service disability underwent an increase in severity during service.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). If the presumption of aggravation arises under 38 U.S.C. § 1153, then the burden shifts from the Veteran, to the government to rebut by clear and unmistakable evidence the pre-existing condition was not aggravated during service, or by establishing that any increase in disability is due to the natural progression of the pre-existing condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Cotant v. Principi, 17 Vet. App. 117, 131 (2003); VAOPGCPREC 3-03, 69 Fed. Reg. 29178 (2004); see also Wagner and Hunt, supra. In deciding a claim based on aggravation, the question turns on whether there has been any measurable worsening of the condition during service, and then on whether such worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary of intermittent flare ups of a pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. at 296-97. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bilateral Hearing Loss Legal Criteria Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests sensorineural hearing loss or tinnitus within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term “chronic disease” refers to those diseases, such as hearing loss, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability 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. 38 C.F.R. § 3.385. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Analysis The Board finds that the probative evidence of record does not document that the Veteran has a current diagnosis of any hearing loss disability for VA purposes. As such, service connection is not warranted on direct or presumptive bases for the claimed disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The Board has thoroughly reviewed the Veteran’s medical records. The Veteran’s STRs contain a significant permanent threshold shift in hearing in the frequency range above 6000 Hz for the left ear, but are otherwise silent for any treatment, diagnoses, or complaints of symptoms associated with hearing loss. The Veteran was provided with a July 2020 VA Hearing Loss examination. Pertinently, the audiological examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 AVG (1000-4000) RIGHT 20 20 20 25 20 21. LEFT 20 20 15 20 20 19 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. As noted above, for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability 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. 38 C.F.R. § 3.385. The Veteran’s hearing loss does not meet these requirements. The Veteran’s VA treatment notes also do not indicate that the Veteran has a current diagnosis of hearing loss for VA purposes. Based on the above, the Board does not find evidence of any hearing loss disability for VA purposes at any time during the pendency of the appeal. The Board has considered the Veteran’s lay contentions and finds the lay statements are competent insofar as they report observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that the Veteran asserts that his claimed conditions are related to his active service, such statements are of no probative value, as the Veteran lacks the medical expertise to diagnose complex conditions or to render medical nexus opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, to the extent the Veteran asserts that he has a current hearing loss condition for VA purposes, such statements are inconsistent with the medical evidence of record that does not document any relevant diagnosis at any time during the pendency of the appeal. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Thus, notwithstanding his assertion that he has a bilateral hearing loss disability, the audiometric evidence reflects that the Veteran does not have a current hearing loss disability for VA purposes. See Palczewski, supra. As the evidence establishes that the Veteran does not have a current disability for VA purposes concerning his claimed bilateral hearing loss and has not had such disability at any point during the pendency of the appeal, the preponderance of the evidence is against the claim of entitlement to service connection. There is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. Pes Planus Initially, the record reflects that the Veteran’s bilateral pes planus was noted on his entrance into service and documented throughout his STRs. The evidence of record indicates the condition clearly and unmistakably pre-existed his active duty service. Therefore, the Board finds that the Veteran’s pes planus pre-existed service, and as such, service connection may only be granted based on an aggravation of this pre-existing disability. The Veteran provided lay statements that he experienced pain in his bilateral feet since service. He also submitted a buddy statement from his brother wherein the brother noted that the Veteran has been complaining about his feet hurting since service. In response to the December 2019 Board remand, the Veteran was afforded a July 2020 VA Foot Conditions examination regarding his claimed flatfoot disabilities. However, the examiner provided contradictory opinions regarding whether the Veteran’s bilateral pes planus was aggravated by his active duty service. As such, the RO requested clarification regarding the contradictory opinions and an examiner issued an August 2020 addendum to the July 2020 examination. In the addendum the examiner stated to ignore the previous July 2020 opinion as it was created in error. In the addendum, the examiner opined that the Veteran’s claimed condition, which clearly and unmistakably existed prior to service, was less likely than not (less than a 50 percent probability) aggravated by the Veteran’s active duty service. In proffering this opinion, the examiner indicated that there was no evidence of aggravation of a pre-existing condition while the Veteran was on active duty. The Veteran’s treatment for left foot pain in 1988 was acute only and due to a contusion. The examiner noted there was no diagnosis of hallux valgus, or chronicity of care documented between 1988 and the Veteran’s exit. The Veteran’s exit examination again showed a diagnosis of pes planus. The examiner also noted that the Veteran’s records are silent for chronicity of care after active duty service as well, and it is not until August 2015 when a VA treatment note shows a complaint of right arch pain. The examiner concluded that the Veteran’s records are silent for chronic foot complaints or chronicity of care either during or after active duty. As such, the examiner opined that there was no aggravation nexus to the Veteran’s active duty or within a year of leaving service. The Board weighs the above-mentioned VA Addendum opinion against the Veteran’s lay contentions that his claimed pes planus condition was aggravated by service. While the Veteran is competent to testify to his symptoms, he is not competent to provide a medical opinion as to the etiology of his disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the August 2020 VA Addendum, which opined against a link between the Veteran’s pes planus and his service, to be of high probative value. The examiner reviewed the entire claims file, to include the July 2020 examinations, and took into account the Veteran’s competent lay statements. As such, the Board affords the August 2020 examiner’s medical opinion great weight. Thus, the probative evidence of record preponderates against the Veteran’s claim for service connection for his pes planus disabilities. Upon a review of the evidence of record, the Board finds service connection is not warranted for the Veteran’s pes planus claim. The evidence of record is against finding that the Veteran’s pre-existing bilateral pes planus was aggravated beyond its natural progression by his active military service. The Board notes the preponderance of the evidence is against the Veteran’s claim; and as such, service connection for the Veteran’s bilateral pes planus disability must be denied. 38 C.F.R. §§ 3.102, 3.306. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.