Citation Nr: 21026981 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-48 711 DATE: May 4, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for rheumatoid arthritis is denied. Entitlement to service connection for a blood clot in the lungs is denied. Entitlement to service connection for a blood clot in veins is denied. Entitlement to service connection for muscle inflammation is denied. Entitlement to a compensable rating for a duodenal ulcer is denied. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for left hip bursitis is remanded. Entitlement to service connection for right wrist carpal tunnel syndrome (CTS) is remanded. Entitlement to service connection for left wrist CTS is remanded. Entitlement to service connection for lumbar spinal stenosis is remanded. Entitlement to service connection for intervertebral disc syndrome (IVDS) is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. The Veteran's left ear hearing loss is at least as likely as not related to or the result of repeated exposure to excessively loud noise and consequent injury (acoustic trauma) during his military service. 2. He did not, however, serve within 12 nautical miles of the coast of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (Vietnam War era) and, thus, it cannot be presumed that he was exposed to an herbicide agent, including the dioxin in Agent Orange, during his service. 3. The preponderance of the evidence is against finding that rheumatoid arthritis, a blood clot in the lungs, a blood clot in veins, or muscle inflammation began during his service, within a year of his discharge, or are otherwise related or attributable to his service. 4. His duodenal ulcer is asymptomatic. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria are met for entitlement to service connection for left ear hearing loss. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. But the criteria conversely are not met for entitlement to service connection for rheumatoid arthritis, a blood clot in his lungs, a blood clot in his veins, and muscle inflammation. Id. 3. The criteria are not for entitlement to a compensable rating for the duodenal ulcer. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.31, 4.114, Diagnostic Code (DC) 7305. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1975 to December 1978. This appeal to the Board of Veterans' Appeals (Board) is from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a hearing in January 2021 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a relevant injury or a disease, and (3) a nexus, or link, between the current disability and disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for left ear hearing loss The Veteran contends that his left ear hearing loss is from repeated exposure to excessively loud noise during his service and consequent injury (acoustic trauma). Service connection already has been established for the hearing loss in the Veteran's other ear, so right ear, also for the ringing in his ears (tinnitus). Thus, it already has been conceded he sustained acoustic trauma during his service. The Veteran's available military records show that his military occupational specialty (MOS) was Aviation Boatswain's Mate, Launching and Recovering Equipment. He testified during his hearing that he was exposed to excessive noise while stationed on the USS Ranger CV61, as he was required to work on and directly underneath the active flight deck. Noise exposure from aircraft and his direct working conditions is consistent with the circumstances of his service. 38 U.S.C. § 1154(a). Thus, there is no disputing the level of his noise exposure in service particularly since, to reiterate, service connection already has been established for the consequent hearing loss in his right ear and for his tinnitus. Certain "chronic" diseases, including sensorineural hearing loss, may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after the Veteran's separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Here though, there is no contention or evidence showing the Veteran's left ear sensorineural hearing loss onset within one year of his separation from service, certainly not to the required compensable degree. In fact, the reason this claim for left ear hearing loss was denied (and the claim, instead, for right ear hearing loss conversely was granted) was because it was determined the Veteran did not have sufficient hearing loss in his left ear to be considered a ratable disability for VA compensation purposes meaning according to the requirements of 38 C.F.R. § 3.385. The evidence of record, however, contrarily confirms ratable left ear hearing loss disability as VA audiological testing in May 2009 confirmed the Veteran has sufficient hearing loss in his left ear to meet the threshold minimum requirements of § 3.385. According to this VA regulation, a ratable hearing loss disability for VA compensation purposes requires an auditory threshold of 40 decibels or greater in one of the specified frequencies of 500, 1000, 2000, 3000 or 4000 Hertz; or at least three of these specified frequencies showing an auditory threshold of 26 decibels or higher; or when speech recognition scores using the Maryland CNC test are less than 94 percent. The Veteran's left ear hearing loss exceeded these thresholds during the May 2009 audiological examination. During the May 2009 audiological evaluation, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 0 5 45 80 Speech audiometry revealed speech recognition ability of 98 percent in the left ear. So, the Veteran clearly had sufficient hearing loss in his left ear, even at the time of that May 2009 VA audiological evaluation, to satisfy the threshold minimum requirements of § 3.385 to be considered a ratable disability for VA compensation purposes. Moreover, a more recent November 2018 VA compensation examiner confirmed the Veteran has moderate-to-severe sensorineural hearing loss in his left ear. The Board therefore finds that the Veteran has established both current disability and relevant noise exposure while in service. He thus need only show a relationship or correlation ("nexus") between his current disability and injury in service (acoustic trauma) to, in turn, warrant the granting of service connection. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). During the May 2009 VA examination, the examiner found that the Veteran's right ear hearing loss and tinnitus were due to his military service, however, his left ear hearing loss was not. The examiner explained that his opinion was based on the Veteran's normal left ear hearing at separation from service. The examiner's rationale was based solely on the absence of indication of significant left ear hearing loss at the time of separation from service. However, the Veteran's separation examination does show a degradation in left ear hearing at some levels between the start of his active duty service and his separation, but it did not meet the requirements of hearing loss for VA purposes at the time of separation. He is competent to describe the features or symptoms of an injury or illness since this is readily capable of even lay observation and based on his firsthand knowledge and experience. Falzone v. Brown, 8 Vet. App. 398 (1995). The same is true for any hearing impairment he has had since service. But, as importantly, when, as here, regulatory requirements for a ratable disability are not shown at time of separation from service, service connection still may be established through probative evidence that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see also 38 C.F.R. § 3.303(d). It other words, the Veteran need not have had ratable hearing loss according to § 3.385 when separating from service, or even during the one-year presumptive grace period following his discharge allowing for initial manifestation of sensorineural hearing loss especially, as long as he now meets the requirements of this VA regulation and has the required attribution of his hearing loss to his service, as opposed to other ("intercurrent") causes. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The May 2009 VA examiner's opinion was based essentially solely on the lack of indication of ratable hearing loss at the time of the Veteran's separation from service, so in direct contravention of these precedent cases and VA regulation. Moreover, the examiner did not opine on whether noise exposure in service (which, again has been conceded with the granting of service connection for right ear hearing loss and tinnitus)) could cause "delayed-onset" hearing loss and, even further, found that the noise exposure during the Veteran's service did cause his right ear hearing loss and tinnitus. Therefore, ultimately, while the Board gives some probative weight to the May 2009 VA medical opinion concluding this, the Board finds the circumstances of the Veteran's service, including especially his repeated exposure to aircraft noise while working on and directly under the active flight deck on the USS Ranger, is more persuasive in determining the origins of his left ear hearing loss. The Veteran also underwent VA audiological evaluations in November 2014 and November 2016, but he had them in relation to his separate claim for a higher rating for his service-connected right ear hearing loss. As such, those examiners did not provide any opinion as to the etiology of his left ear hearing loss, but the findings confirm that he continues to have left ear hearing loss for VA purposes. For these reasons and bases, and resolving all reasonable doubt in his favor concerning the origins of his left ear hearing loss, service connection is granted. 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating "absolute" etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an "as likely as not" proposition, which in this instance it is for the reasons and bases discussed. 2. Entitlement to service connection for rheumatoid arthritis, a blood clot in the lungs, a blood clot in veins, and muscle inflammation The Veteran contends that he was exposed to herbicide agents while stationed on the USS Ranger CV61, and that the exposure caused his rheumatoid arthritis, blood clot in his lungs, blood clot in veins, and muscle inflammation (myositis). While none of these claimed disabilities are presumed to be due to exposure to an herbicide agent, see 38 U.S.C. § 1116 and 38 C.F.R. §§ 3.307(a)(6), 3.309(e), direct service connection can be established under 38 C.F.R. § 3.303(d) by showing these disabilities were incurred during or aggravated by the Veteran's service, so without regard to presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (i.e., Vietnam era), shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. Notably, however, the Veteran's service on the USS Ranger CV61 started after this designated period, as his service personnel records (SPRs) show that his time on the USS Ranger began in January 1976. Therefore, there is no presumption that he was exposed to herbicide agents, even on the chance he is alleging this vessel navigated within the permissible 12-nautical mile radius off the coast of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371 (2019). Resultantly, the Veteran's claims that his rheumatoid arthritis, blood clot in lungs, blood clot in veins, and muscle inflammation are all due to exposure to an herbicide agent cannot succeed without other evidence showing that he was exposed to an herbicide agent. And, unfortunately, the Board finds that there is not any such credible evidence currently in the claims file tending to show he was exposed to herbicide agents to warrant further developing these claims, including as directed in Procopio. During his January 2021 hearing, the Veteran testified that he was not assigned to the USS Ranger until months after it returned from Vietnam, which is consistent with his SPRs. Further, the basis of his exposure to Agent Orange is, "[w]ho is to say some Agent Orange wasn't in the paint or wasn't in the water still laying stagnant in the area where the shift dampeners come through with the drains plugged." However, again, the Board stresses that he was not assiged to the USS Ranger until January 1976, so not until some seven months after the end of the Vietnam War era. While the Veteran no doubt sincerely believes his rheumatoid arthritis, blood clot in lungs, blood clot in veins, and muscle inflammation are from exposure to herbicide agents during his service aboard the USS Ranger, for the reasons and bases discussed, the preponderance of the evidence is against this notion and weighs against findings that he was exposed to herbicide agents, including the dioxin in Agent Orange, during his service. His claims, consequently, must be denied absent the required direct or presumptive attribution of these claimed disabilities to his service Increased Rating 3. Entitlement to a compensable rating for a duodenal ulcer Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3, The Board will consider entitlement to "staged" ratings to compensate for times when the disability may have been more severe than at others, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). According to 38 C.F.R. § 4.27, "diagnostic code numbers...are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis". Choice of DC should be upheld so long as it is supported by explanation and evidence. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). The assignment of a particular DC is "completely dependent on the facts of a particular case" and the Board can choose the DC to apply so long as it is supported by reasons and bases as well as the evidence. Butts, 5 Vet. App. at 538. One DC may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch DCs to reflect more accurately a claimant's current symptoms. See also Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the DC associated with it is changed to determine more accurately the benefit to which a Veteran may be entitled). Here, the Veteran's duodenal ulcer is currently rated under DC 7905 for hypoparathyroidism. This appears to be a mistake as DC 7305 directly applies to duodenal ulcers. As such, the Board is assigning the Veteran's duodenal ulcer DC 7305 and will discuss a potential higher rating under this DC. Under DC 7305, a 10 percent evaluation is warranted for a mild duodenal ulcer, with recurring symptoms once or twice per year. A 20 percent evaluation is warranted for a moderate ulcer with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration or with continuous moderate manifestations. A 40 percent evaluation contemplates a moderately severe ulcer, less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A rating of 60 percent is assigned to severe ulcers with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. 38 CFR§ 4.114, DC 7305. In every instance where the schedule does not provide a 0 percent rating for a DC, a 0 percent rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Veteran underwent a VA examination for his duodenal ulcer in November 2016. The examiner confirmed the Veteran was treated for a duodenal ulcer during service but found that, after his separation, the ulcer apparently had resolved, and the Veteran has not had any symptoms of the ulcer since his separation from service. The Veteran admitted not having any then current symptoms, and there had been no incapacitating episodes owing to any symptoms or signs of a duodenal ulcer. As such, the examiner explained a duodenal ulcer was proven present during service and symptoms remained active during service, but those symptoms stopped after discharge and are not present today. During his January 2021 hearing, the Veteran did not contend his duodenal ulcer has any current symptoms or consequent impairment and did not assert that it has gotten worse since assignment of his existing 0 percent (noncompensable) rating. As such, the Board finds that the Veteran does not meet the criteria for a 10 percent rating (which is the most minimum compensable rating) under DC 7305, meaning he does not have a mild duodenal ulcer with recurring symptoms once or twice per year. See 38 CFR§ 4.114, DC 7305. As such, a 0 percent rating is appropriate. See 38 C.F.R. § 4.31. REASONS FOR REMAND 1. Entitlement to service connection for a TBI is remanded. The Veteran underwent a VA examination for his claimed TBI in November 2016. This examiner confirmed the Veteran sustained a TBI during his service but found that he did not then currently (meaning at the time of that VA examination) suffer from any residuals of that TBI. However, during his more recent January 2021 hearing before this Board, the Veteran testified that he has had some symptoms potentially attributable to his TBI since it occurred namely, memory problems and, closer in time to his separation from service, difficulty obtaining employment. The November 2016 VA examiner did not take these lay statements into account and, as such, that VA examination is inadequate. A new VA examination to assess any residuals of the Veteran's TBI thus is warranted. 2. Entitlement to service connection for left hip bursitis, right and left wrist CTS, lumbar spinal stenosis, and IVDS, is remanded. The Veteran contends that his left hip bursitis, right and left wrist CTS, lumbar spinal stenosis, and IVDS all potentially were caused by the same incident that caused his TBI. More specifically, his service treatment records (STRs) show that, in November 1978, he sustained a head injury with consequent loss of consciousness. During his January 2021 hearing, he testified that the incident leading to his TBI was hitting his head on metal and falling unconscious, which included falling to the ground. He contends that fall may have caused these other claimed disabilities. The Board cannot make a fully-informed decision concerning this because no VA examiner has commented on whether any of these additionally claimed disabilities are related to that November 1978 fall in service. Hence, the Board is obtaining this needed medical comment. 3. Entitlement to service connection for OSA is remanded. The Veteran asserts that his OSA either onset during his service or is related to snoring and nightmares during his service. He submitted a private sleep study done in September 2013 confirming he has OSA. However, the Board cannot make a fully-informed decision concerning its origins because no VA examiner has commented on this including in terms of whether the reported snoring and nightmares in service were initial indications. Accordingly, these remaining claims are REMANDED for the following action: 1. If there are outstanding records concerning these remaining claims, obtain them and appropriately notify the Veteran and representative if unable to obtain any additional records they identify with the required amount of information. 38 C.F.R. § 3.159(c) and (e). 2. After receiving all additional treatment or other relevant records, schedule the Veteran for another VA examination for his TBI (as a supplement to the November 2016 examination). The examiner is asked to provide a response to the following: Does the Veteran currently have any residuals from his TBI in service? Provide rationale supporting the opinion of whether the Veteran does versus does not. To this end, the examiner is asked to specifically address the Veteran's contentions that he has suffered from mild memory loss since his confirmed TBI during service and that he had consequent difficulty obtaining employment for two years following his separation from service. 3. Also, obtain an addendum opinion from an appropriate clinician regarding the Veteran's left hip bursitis. The examiner is asked to provide a response to the following: Is left hip bursitis at least as likely as not related to the Veteran's service, including especially to his November 1978 fall that resulted in his TBI? Provide rationale supporting the opinion. 4. As well, obtain an addendum opinion from an appropriate clinician regarding the Veteran's bilateral carpal tunnel syndrome (CTS). The examiner is asked to provide a response to the following: Is the Veteran's left or right wrist CTS at least as likely as not related to his service, including especially to his November 1978 fall that resulted in his TBI? Provide rationale supporting the opinion. 5. Schedule the Veteran for a VA examination for his lumbar spine. The examiner is asked to provide a response to the following: First clarify all current lumbar spine diagnoses (the Veteran claims spinal stenosis and IVDS). For all identified lumbar spine disabilities, is it at least as likely as not related to the Veterans' service, including especially to his November 1978 fall that resulted in his TBI? Provide rationale supporting the opinion. 6. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's obstructive sleep apnea (OSA) is at least as likely as not related to the snoring and sleep disruption (nightmares) he says he experienced during his service. Provide rationale supporting the opinion. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.