Citation Nr: 21024290 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-30 949 DATE: April 22, 2021 ORDER A rating in excess of 30 percent for other specified trauma and stressor related disorder is denied. A rating in excess of 10 percent for tinnitus is denied. Service connection for bilateral hearing loss is denied. Service connection for tuberculosis (TB) is denied. Service connection for a gastrointestinal (GI) disorder is denied. FINDINGS OF FACT 1. The Veteran had active duty from December 1967 to August 1969. 2. A psychiatric disability has been manifested by subjective complaints of anxiety, depression, and sleep impairment; objective findings include logical and linear thought processes, appropriate affect, adequate insight and judgment, and grossly intact cognition. 3. The current rating for tinnitus is the maximum allowed by the law. 4. Bilateral hearing loss for VA purposes has not been shown. 5. A current diagnosis of TB has not been shown. 6. The Veteran had complaints of an upset stomach during active duty but symptoms were not shown to be chronic; a current GI disorder, diagnosed as gastroesophageal reflux disease (GERD), is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for other specified trauma and stressor related disorder have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.59, 4.130, Diagnostic Code (DC) 9435 (2020). 2. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 C.F.R. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.87, DC 6260 (2020). 3. Bilateral hearing loss was not incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2020). 4. TB was not incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). 5. A GI disorder was not incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Psychiatric Disability The Veteran is currently rated at 30 percent for other specified trauma and stressor related disorder. All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders (“General Rating Formula”). Under the General Rating Formula, a 30 percent rating is warranted for 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 occurring weekly or less often, chronic sleep impairment, and mild memory loss (i.e. forgetting names, directions, or recent events). A 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Turning to the medical evidence, an October 2016 VA examiner found that a psychiatric disorder had been formally diagnosed, but symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. Symptoms included depressed mood, anxiety, chronic sleep impairment, and mild memory loss. A mental status examination revealed that the Veteran was oriented to person, place, date, time, and situation. Further, his speech was with normal limits with regards to rate, rhythm, and volume, and his affect was appropriate. He denied suicidal/homicidal intent and the examiner found no indications of obsessions, compulsions, panic attacks, or manic symptoms. In addition, the examiner reported that the Veteran’s thought processes were linear and goal-directed and there was no evidence of delusions or hallucinations. His judgment was intact and he exhibited adequate reasoning and comprehension. Throughout 2017, clinical psychiatry sessions reflected that the Veteran was alert and oriented with linear, logical, and organized thought processes. His mood was described as sad and affect tearful at times. Further, multiple treatment notes showed no evidence of delusional thoughts, suicidal/homicidal ideation, or perpetual disturbances. In addition, his insight and judgment were adequate and his cognition was grossly intact. VA clinical treatment notes dated throughout 2018 reported that the Veteran was getting better but was still jumpy and nervous around crowds. On several occasions, he reported that he was spending time with his family. He reflected that he was experiencing recurring trauma-based dreams and was using alcohol and cannabis to self-medicate. Throughout the psychiatry sessions, he was alert and oriented and his affect was appropriate. Further, his thought process was linear, logical, and organized and he denied suicidal/homicidal ideation, intent, and plan. There was no evidence of delusional thoughts and his insight and judgment were adequate with intact cognition throughout treatment sessions. In September 2018, a private psychologist examined the Veteran and reported that he appeared anxious, depressed, and unhygienic. The Veteran also described symptoms of irritability, sleep impairment, and social avoidance. He was oriented in all spheres but displayed problems with cognitive function, including memory. The clinician reviewed the relevant medial history, including the October 2016 VA examination and concluded that the Veteran met the formal criteria for a diagnosis of posttraumatic stress disorder (PTSD), along with persistent depressive disorder, alcohol use disorder, and cannabis use disorder related to service. In sum, the clinical treatment records and psychiatric evaluations of record reflect symptoms including anxiety, depression, chronic sleep impairment, mild memory loss, and social avoidance. Throughout the period on appeal, the evidence shows appropriate affect, normal speech patterns, logical and linear thought processes, adequate insight and judgment, and grossly intact cognition. Further, the Veteran has not reported suicidal/homicidal ideation or delusional thoughts. As such, record fails to establish a flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, impaired judgment, and impaired abstract thinking, or any symptoms like or similar to those contemplated by the rating criteria. Based on the above, the medical evidence more closely resembles the criteria for a 30 percent rating and a 50 percent rating is not warranted. Accordingly, the medical evidence does not support a higher rating. Tinnitus The Veteran is currently rated at 10 percent for tinnitus and contends that he is entitled to a higher rating. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the Veterans Claims Court held that the pre-1999 and pre-June 13, 2003 versions of DC 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which concluded that the Veterans’ Court erred in not deferring to VA’s interpretation of its own regulations, 38 C.F.R. § 4.25 and DC 6260, which limited a veteran to a single 10 percent rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The Veteran’s service-connected tinnitus is evaluated as 10 percent disabling, which is the maximum schedular rating available for such disability. To the extent that he has claimed entitlement to a higher rating due to manifestations of severe, debilitating ringing of the ears, there is no legal basis upon which to award a higher rating for these symptoms. As such, the appeal is denied. The Board has also considered the Veteran’s lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s psychiatric disability and tinnitus has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Bilateral Hearing Loss Hearing loss is recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when 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. During an October 2016 VA examination, testing results were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 15 25 LEFT 20 20 15 30 30 Further, speech recognition scores were 96 percent in the right ear and 100 percent in the left ear. As such, this evidence does not establish a diagnosis of hearing loss for VA purposes. A review of the Veteran’s private and VA medical records fails to show any other audiological examinations. Therefore, the medical evidence does not support service connection for bilateral hearing loss as a current disorder has not been shown. Tuberculosis As to current diagnosis, the Veteran had a positive TB skin test upon induction to active duty in December 1967. Multiple follow-up chest X-rays taken throughout 1968 were negative for TB and showed no significant abnormalities. Further, there was no formal diagnosis of or treatment for TB during service. The August 1969 separation examination noted no defects and the examination report specifically denied that the Veteran had ever diagnosed with TB. Therefore, the service treatment records (STRs) do not reflect a diagnosis of TB during active duty. As to post-service evidence, the Veteran claims he had a positive skin test for TB in 1998 and was treated with medication. On the other hand, an October 2016 VA examiner found that the Veteran had never been diagnosed with active or latent TB. He noted that while the Veteran had a positive skin test in 1968 during service, this did not represent active TB. Further, the examiner found no medical evidence showing a positive skin test and treatment for TB in 1998. Even assuming a positive skin test in 1998, the examiner explained that this did not represent active TB, but merely a positive skin test. In sum, the VA examiner found that the Veteran did not have a diagnosis of TB because the STRs, separation examination, and post-service medical records all showed no diagnosis of TB. While the Veteran had a history of positive skin tests for TB, the examiner explained that these did not represent a diagnosis of TB as all subsequent chest X-rays were negative. As such, the examiner concluded that there was no diagnosis of TB. Further, the private and VA medical treatment records do not show that the Veteran was ever diagnosed with TB. Therefore, without a current diagnosis, the medical evidence does not support service connection for TB.   GI Disorder Turning to the medical evidence, private and VA medical treatment records reflect complaints of and treatment for GERD. As such, a current disorder has been shown and the first element of service connection has been met. As to in-service incurrence, the STRs reflect complaints of stomach cramps in July 1968 and an upset stomach with nausea and vomiting in January 1969. However, no chronic disorder was diagnosed and the August 1969 separation examination indicated a normal clinical evaluation of the abdomen and viscera. Further, the Veteran specifically denied having stomach trouble or frequent indigestion at separation. Accordingly, the medical evidence does not show a chronic disorder during service and the second element of service connection as not been met. Therefore, as the second element of service connection has not been shown, the medical evidence does not support the claim. To the extent that the Veteran asserts a medical nexus between his upset stomach in service and GERD, no health care professional has ever established such a connection. The only evidence establishing a link is the Veteran’s statements. The Board has considered the Veteran’s lay statements that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kokolas, 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.