Citation Nr: 21023579 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-28 072 DATE: April 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for residuals of blood and/or food poisoning is denied. REMANDED Entitlement to service connection for a thoracolumbar back disorder is remanded. Entitlement to service connection for bilateral foot disorders is remanded. Entitlement to service connection for bilateral wrist disorder is remanded. FINDINGS OF FACT 1. The Veteran’s active service aggravated his pre-existing bilateral hearing loss. 2. The Veteran has not had a present diagnosis PTSD or any other an acquired psychiatric disorder during the period on appeal or proximate thereto. 3. The Veteran has not had a present diagnosis for a residual disorder of purported in-service food poisoning and/or blood poisoning during the period on appeal or proximate thereto. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.303, 3.306(a). 2. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for residuals of blood poisoning and/or food poisoning are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 6, 1967 to July 12, 1967. The Veteran also served with the Army National Guard from June 1965 to June 1971. The Veteran testified before the undersigned Veterans Law Judge in a January 2021 hearing. A transcript of that hearing is included in the Veteran’s claim file. Service Connection 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). 1. Entitlement to Service Connection for Bilateral Hearing Loss The Veteran contends that he is entitled to service connection for bilateral hearing loss. The Board agrees that service connection for bilateral hearing loss is warranted here. Hearing loss was noted in the Veteran’s April 1965 pre-induction examination. Cases in which the condition is noted on entrance are governed by the presumption of aggravation of a preexisting disability contained in 38 U.S.C. § 1153. Under § 1153, a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows 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. The Veteran has the burden of showing by a preponderance of the evidence that there was an increase in hearing loss during active service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If he does so, the aggravation is presumed to be due to the Veteran’s active service unless clear and unmistakable evidence shows that the increase in severity was due to the natural progress of the disability. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, worsen. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). If VA determines that there has been an increase in disability, the presumption of aggravation applies regardless of whether the degree of worsening is enough to warrant compensation under the VA rating schedule. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The Board concludes that the Veteran’s active service aggravated his pre-existing hearing loss. In an August 2013 VA examination report, the examiner indicated that the Veteran’s service aggravated his hearing loss. The Veteran is also service connected for tinnitus. In an August 2013 VA examination report, a VA examiner concluded that tinnitus was due to noise exposure during active service and the Veteran’s hearing loss. The development of tinnitus during active service as a result of hearing loss indicates that the Veteran’s hearing loss worsened during active service. The onset of tinnitus during active service due, in part, to the Veteran’s hearing loss forecloses VA’s ability to carry its arduous burden of showing by clear and unmistakable evidence that his hearing loss was not aggravated during active service. Thus, the worsening in the Veteran’s hearing is presumed to be due to the Veteran’s active service, and service connection for bilateral hearing loss is granted. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In reaching this conclusion, the Board notes an August 2013 addendum opinion concluding that the Veteran’s hearing loss was not aggravated during active service. This opinion is entitled to no probative weight. As an initial matter, the opinion does not employ the correct evidentiary standard. It simply stated that hearing loss was not aggravated by service without discussing whether there was clear and unmistakable evidence showing that worsening of hearing loss during active service was due to the natural progression of the disorder rather than the Veteran’s active service. In addition, the addendum opinion states that the Veteran’s hearing was normal upon separation. This is not supported by the evidence. The Veteran’s June 1967 separation examination did not include audiometric data, and the only measurements were based on whisper voice tests. While these showed normal hearing of 15/15, whisper voice tests are not valid assessments of hearing at the time of separation. They cannot constitute clear and unmistakable evidence for purposes of rebutting the presumption of aggravation. Moreover, the August 2013 addendum opinion does not address the positive opinion attributing tinnitus to the Veteran’s hearing loss. In light of the foregoing, entitlement to service connection for bilateral hearing loss is granted. 2. Entitlement to Service Connection for PTSD The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD. According to an August 2012 statement, the Veteran identified two events during service. First, he occupied a fox hole in a firing range in which a serviceman had committed suicide the previous day. He says evidence of the suicide was still present in the position on the firing range that he occupied the following day. Second, he contends that a serviceman collapsed and died from exhaustion while running in formation during training. Two soldiers attempted to assist him, but he was non-responsive. The AOJ attempted to verify both stressors but 2013; however, a June 2013 report indicates that the stressors could not be verified. In an October 2013 memorandum, it was stated that the Joint Services Records Research Center and the Director, U.S. Crime Records Center could not verify the Veteran’s reported stressors. The preponderance of the evidence also fails to show that the Veteran has a current diagnosis for PTSD or any other acquired psychiatric disorder and has not had one 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). The Veteran’s post-service treatment records do not include a diagnosis for any acquired psychiatric disorder. July 2013 private treatment records document the Veteran’s denial of depression, anxiety, substance abuse, and suicide attempts. January 2011, July 2010 and April 2010 psychiatric examinations were negative. Service connection requires a present disability for which compensation can be paid. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that the Veteran’s friends, S.W. and R.W.—both of whom have known the Veteran for more than forty years—testified in January 2021 that his mind does not work the same as when they first met him. He has frequent mood swings, and his memory has grown worse. The Veteran endorsed his difficulty remembering things and noted that he frequently asks his friends to remind him of things from time to time. While this testimony describes symptoms that may be due to a psychiatric disorder; the record does not show that the Veteran’s friends have the training, expertise, or experience needed to determine that the Veteran has a diagnosis for a psychiatric disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, they are not competent to testify that the Veteran’s symptoms amount to a diagnosable acquired psychiatric disorder. The Board affords more probative weight to the competent evidence of record showing negative psychiatric assessments and the Veteran’s denials of psychiatric symptoms. Thus, the Veteran’s claim is denied. 3. Entitlement to Service Connection for Residuals of Blood Poisoning and/or Food Poisoning The Veteran contends that he is entitled to service connection for a blood disorder, claimed as blood poisoning. His October 2013 notice of disagreement characterizes the claim as seeking service connection for food poisoning. According to his January 2021 hearing testimony, the Veteran experienced food poisoning during active service in 1967. The Board concludes that the Veteran’s claim must be denied because the first element of service connection requiring a current diagnosis is not shown. See Shedden, 381 F.3d at 1166-67. The Veteran’s VA and private treatment records do not include any current blood disorders or residuals of food poisoning. The occurrence of an in-service event or injury is only one element of service connection and does not in and of itself establish entitlement to service connection. See id. “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have result in a disability,” and service connection is not warranted “simply because [a veteran] had a disease or injury while on active service.” Brammer, 3 Vet. App. at 225. Even if the Veteran had food poisoning or blood poisoning during active service, he has not submitted evidence showing a current disorder that is residual to that in-service event. The Veteran’s claim is denied. Recognition is given to the fact that the Veteran has not been accorded a VA examination or medical opinion regarding a disability resulting from blood or food poisoning. However, no VA examination or medical opinion is needed in this case as the weight of the evidence demonstrates no indication of any such related disability. Consideration has been given to the Veteran’s hearing testimony that he has been told that a history of sinus trouble may be related to his purported food and/or blood poisoning during active service. The Veteran is competent to report what he was told by treating medical professionals; but, the record does not include a sinus-related diagnosis. The Veteran’s himself was even vague in that respect and in identifying any disability/disorder that was related to his food/blood poisoning episode. As there is no evidence that indicates that the Veteran has a disability related to blood or food poisoning that may be associated with service, a VA examination is not needed in this case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). REASONS FOR REMAND 1. Entitlement to Service Connection for a Thoracolumbar Spine Disorder, Diagnosed as Scoliosis Once VA undertakes to provide a veteran an examination, it must ensure that it is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded a VA examination for his thoracolumbar spine in August 2013. He was diagnosed with scoliosis, and the examination report notes that the Veteran’s April 1965 pre-induction examination noted mild scoliosis. Thus, scoliosis was noted upon entry. As was the case with bilateral hearing loss, the presumption of aggravation applies here. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner, 370 F.3d at 1096. The thoroughness of the examiner’s review is evident in the discussion of the pre-induction diagnosis of scoliosis and the February 1967 in-service complaints of and treatment for a back strain. The examiner addressed these details in the rationale for the opinion, noting that a muscle strain is an acute, self-limiting injury that does not have residuals. However, the opinion does not address whether there is clear and unmistakable evidence that the Veteran’s active service did not aggravate his pre-existing scoliosis. Because the question of aggravation is not addressed, the Board concludes that the August 2013 VA examination is inadequate. Thus, the Veteran’s claim for service connection for a thoracolumbar spine disorder, to include scoliosis, must be remanded to afford him a new VA examination. See Barr, 21 Vet. App. at 312. 2. Entitlement to Service Connection for Bilateral Wrist Disorders and Bilateral Foot Disorders The Veteran contends that he is entitled to service connection for bilateral wrist disorders and bilateral foot disorders. In his January 2021 hearing, the Veteran stated that he had foot and wrist problems during active service that he attributed to the stresses and strains associated with such service. The Veteran noted that his rucksack could weigh up to 70 pounds, 80 pounds, and even 100 pounds. The record does not include a medical diagnosis for bilateral foot disorders or bilateral wrist disorders. However, during his hearing, the Veteran testified that his wrist and feet give him problems. With respect to his bilateral foot disorder, the Veteran reported that he had sore feet during active service and sought treatment at sick call. He testified further that his feet continued to hurt following his separation from active service. He also noted that he does not seek treatment for either his feet or his wrist. The Veteran’s testimony raises the possibility that he has pain resulting in functional loss in his feet and wrists even if he does not have a diagnosed disorder. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Given the Veteran’s testimony regarding in-service foot and wrist symptoms, and in-service treatment for via sick call for foot pain, the Board concludes that the Veteran should be afforded VA examinations to determine the nature and etiology of any foot disorders and any wrist disorders. The Veteran describes possible current impairment, notes in service complaints, and the evidence of record is insufficient for the Board to adjudicate the Veteran’s claims. VA examinations should be obtained.   The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his thoracolumbar spine disability, diagnosed as scoliosis. The examiner must review the claims file. 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: (a.) Did the back strain diagnosed and treated during active service constitute an aggravation of the Veteran’s scoliosis, which was noted in an April 1965 pre-induction examination. (b.) Is there clear and unmistakable evidence that the Veteran’s active service did not aggravate the Veteran’s scoliosis, which was noted in an April 1965 pre-induction examination? Provide a rationale to support the opinion(s). 2. Schedule the Veteran for a VA examination for bilateral wrist disorders. The examiner must review the claims file. 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 any diagnosed wrist disability of either writs or both wrists at least as likely as not related to active service, including the stresses and strains of active service? 3. Schedule the Veteran for a VA examination for his claim bilateral foot disorders. The examiner must review the claims file. 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 any diagnosed disorder of either foot or both feet at least as likely as not related to active service, including the stresses and strains of active service? MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.