Citation Nr: 21040061 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-01 808 DATE: July 2, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to July 28, 2015, is denied. Entitlement to a disability rating of 50 percent for PTSD on and after July 28, 2015, is granted. REMANDED Entitlement to a compensable disability rating for service-connected dermatitis is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected lumbosacral strain is remanded. Entitlement to a compensable disability rating for traumatic brain injury (TBI) is remanded. Entitlement to service connection for seizures is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A February 2010 rating decision denied entitlement to service connection for bilateral hearing loss; the Veteran did not perfect an appeal, and the decision became final. 2. The evidence associated with the claims file following the February 2010 denial of the Veteran's claim for service connection for bilateral hearing loss is new and material, and the claim is thus reopened. 3. The Veteran does not have bilateral hearing loss as defined by VA regulations. 4. For the entire period on appeal, the Veteran's PTSD was manifested by symptoms of the type and extent, frequency, and/or severity (as appropriate) that are indicative of occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The February 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160. 2. New and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for a disability rating in excess of 50 percent for PTSD have not been met for the period prior to July 28, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.71a, Diagnostic Code 9411. 5. The criteria for a disability rating of 50 percent for PTSD have been met on and after July 28, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.71a, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2005 until January 2009. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2015 Department of Veterans Affairs (VA) regional office (RO) rating decision. In February 2021, the Veteran participated in a hearing with the undersigned; a transcript is associated with the claims file. Preliminarily, a review of the evidence reflects that the issue of a TDIU has been raised by the record. A February 2021 record shows that the Veteran was separated from his employment because he was physically unable to perform the work due to migraine headaches and seizures. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record. In light of evidence associated with the Veteran's claims file during the appeal period, to include the June 2019 private examination, the Board finds that the issue of entitlement to a TDIU is reasonably raised by the record and considered to be part of the Veteran's appeal, as is reflected on the title page of this decision. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board finds that new and material evidence regarding the Veteran's claimed bilateral hearing loss has been received since the February 2010 denial, to include numerous post-service treatment records, a June 2017 VA examination, and February 2021 hearing testimony before the undersigned. This new evidence relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met, and the claim for service connection for bilateral hearing loss is reopened. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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. It has been established that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and current disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303 (d). Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss, which he says is related to excessive noise exposure from being a machine gunner and logistics vehicle systems operator in service. A VA audiological examination conducted in June 2017 shows auditory thresholds as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left 10 20 20 15 15 Right 10 10 20 15 20 Speech discrimination scores were 100 percent in each ear. At the February 2021 hearing, the Veteran testified that his hearing loss has not gotten worse since the last examination. Impaired hearing will be considered 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. 38 C.F.R. § 3.385. As shown above, the June 2017 VA examination did not show hearing loss for VA purposes in either ear based upon puretone thresholds and the speech discrimination scores. The Board notes that the Veteran was exposed to hazardous military noise while in service. However, even given the satisfaction of the second Shedden element here, in the absence of proof of a present disability, there can be no valid claim for service connection. Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). The preponderance of the evidence shows that the Veteran is not diagnosed with bilateral hearing loss at any point during the appellate period or close in time to the appeal period. The Board notes that the Veteran is competent to report a history of in-service noise exposure, and such exposure is conceded. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, a review of the record shows no diagnosis of bilateral hearing loss. Indeed, the Veteran confirmed that his hearing has not gotten worse since the last VA examination, which did not reflect hearing loss for VA compensation purposes. Bilateral hearing loss for VA purposes is not a simple medical condition capable of lay observation or diagnosis, and the Veteran is not shown to be qualified through specialized education, training, or experience to diagnose a hearing loss disability. The Board gives probative weight to the June 2017 VA examination as it is based on the VA specific audiological criteria. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In the absence of any persuasive and probative evidence that the Veteran has bilateral hearing loss, service connection is not warranted, and the claim must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. PTSD is rated using the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a 30 percent rating is warranted when there is 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 (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation will be assigned with evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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 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 ideations; 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 the veteran's personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform the activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a disability rating in excess of 50 percent for PTSD for the period prior to July 28, 2015, and in excess of 30 percent thereafter The Veteran contends that his currently assigned staged rating of 50 percent prior to July 28, 2015, and 30 percent thereafter, does not adequately compensate him for the symptoms associated with his service-connected PTSD. For the reasons discussed below, the Board concludes that the Veteran's PTSD symptoms most approximate the 50 percent criteria, but no higher, for the entire appeal period. At an August 2015 VA examination, the examiner opined that the Veteran suffered from symptoms of PTSD including anxiety, suspiciousness, chronic sleep impairment, exaggerated startled response, hypervigilance, aggressive and sometimes reckless behavior, and feelings of detachment. The examiner reported no alcohol or drug abuse, suicidal ideations, or delusions. The examiner observed at the interview that he spends time with his mother, but sometimes forgets to shower or take out his dog. The examiner found that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency, concluding that his PTSD appeals to be "mildly to moderately interfering with his functioning." In a November 2015 lay statement, the Veteran stated that he is currently on antidepressants, has anxiety attacks, sleepless nights, and "forgetfulness in all aspects of my life." In a June 2017 VA examination, the Veteran reported that he gets up around 11 am daily and may use a little alcohol or marijuana to relax. He additionally reported that he sometimes forgets to shower and eat, but does spend some time with his mother and some friends who come over to play videogames. The VA examiner indicated that the Veteran exhibited recurrent distressing memories, diminished interest in activities, feelings of detachment, depressed mood, anxiety, suspiciousness, irritable behavior, hypervigilance, problems with concentration, and sleep disturbance. The examiner again concluded that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency. At the February 2021 hearing, the Veteran explained that he has 5 cameras around his house and "perceive people as threats a lot of times which aren't so . . . sometimes when people are reaching into the shirts and things, I think that they have weapons." The Veteran also described how he stays at home now because of his "paranoia," and sleeps with a 40-caliber pistol under his pillow. Upon consideration of the medical and lay evidence in this case, the Board finds that a rating of 50 percent, but no greater, is appropriate for the entire period on appeal. The Board has considered whether a staged rating is warranted; however, the Board finds that his symptomatology has most nearly approximated symptoms such as those exemplified by the 50 percent disability criteria throughout the appeal period. Thus, staged ratings are not warranted. The Board finds that the Veteran has been largely consistent throughout the entire period on appeal regarding the frequency and severity of his PTSD symptoms, including recurrent distressing memories, diminished interest in activities, feelings of detachment, depressed mood, anxiety, hypervigilance, and sleep disturbance. These types of symptoms support entitlement to a 50 percent rating for PTSD. The Board notes the parallel between the August 2015 VA examination, November 2015 lay statement, and June 2017 VA examination describing the Veteran's forgetfulness and problems concentrating. The Board further finds, however, that the Veteran is not entitled to a disability rating in excess of 50 percent for his PTSD at any point on appeal. The medical and lay evidence does not show that the Veteran's PTSD caused deficiencies in most areas (the basis for a 70 percent rating) during any part of this appeal period. There is no evidence of the symptoms of the type, extent, frequency, or severity indicative of those identified as warranting a 70 percent rating, such 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; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. Significantly, the Veteran reported that he has a good relationship with his mother and spends time playing videogames with his friends. These facts all weigh against a rating of 70 percent at any point on appeal. Additionally, both the August 2015 and June 2017 VA examiners found the Veteran's PTSD to cause no more than occupational and social impairment with occasional decrease in work efficiency, which does not rise to the level of severity to support a 70 or 100 percent rating. In summary, the Board finds that the Veteran's PTSD symptoms most approximate the criteria for a 50 percent disability rating, but no higher, for the entire period on appeal. The Board has resolved all doubt in the Veteran's favor. See 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to a compensable disability rating for service-connected dermatitis is remanded. 2. Entitlement to a compensable disability rating for TBI is remanded. 3. Entitlement to a disability rating in excess of 10 percent for lumbosacral strain is remanded. Pursuant to Snuffer v. Gober, 10 Vet. App. 400 (1997), a claimant is entitled to a new VA examination where there is evidence that the condition has worsened since that last VA examination. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). Here, it appears as though the Veteran's dermatitis, TBI, and back disability may have worsened since the last VA examinations. Regarding the Veteran's skin disability, the Veteran participated in VA examinations for them in August 2015 and June 2017. The VA examiner indicated that the Veteran was diagnosed with dermatitis with lichenoid reaction posterior to left pinna, perianal dermatitis, and perineal and perigenital folliculitis. However, at the Veteran's February 2021 hearing, he credibly testified that his skin disability has now spread across his chest and underneath his arms. Regarding his TBI, the June 2015 VA examiner noted that the Veteran's motor activity was normal and that he did not have any subjective symptoms, to include with his memory. However, as the February 2021 hearing, the Veteran testified that he has significant memory issues (as he needed to constantly use a GPS to navigate and save relationship labels in his cell phone). The Veteran also testified that he has significant headaches and trouble understanding complex procedures as he struggles to "even keep up with the slower average kids in the class or in the job." Regarding his back disability, the June 2015 VA examiner stated that the Veteran did not experience any flare-ups or spasms of his back. However, at the February 2021 hearing, the Veteran testified that his back spasms about 1 to 3 times per month lasting 45 minutes to an hour each. The Veteran additionally testified that when his back spasms, he "can't really bend over. I can't really move too much." All three instances are examples of competent evidence of a worsening disability. Accordingly, remand is necessary to obtain contemporaneous VA examinations for these disabilities. Snuffer v. Gober, 10 Vet. App. 400 (1997). 4. Entitlement to service connection for seizures is remanded. The Veteran contends that his seizures are directly caused by an improvised explosive device (IED) explosion in-service, or secondary to his service-connected TBI or psychiatric disability, or even medications he takes for other service-connected disabilities. The Veteran also contends that his seizure VA examination was not performed by the VA recommended specialist. At a June 2017 VA examination for his seizures, the VA examiner opined that it was less likely than not that his seizures were proximately due to his alcohol abuse from his psychiatric disability as there was no mention of alcohol use prior to either seizure episode. The Board finds the June 2017 VA examination inadequate as the VA examiner failed to opine whether the Veteran's seizure disability was directly caused by service (to include the IED explosions), aggravated by his psychiatric disability, or secondarily caused or aggravated by his TBI. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Remand is therefore necessary to obtain an addendum VA medical opinion. 5. Entitlement to TDIU The claim for a TDIU is inextricably intertwined with the increased rating claims on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that any Board action on the TDIU claim, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected skin disability. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all symptomatology and functional impairment resulting from the Veteran's skin disability. The examiner is directed to consider the Veteran's February 2021 testimony that his skin disability has now spread across his chest and underneath his arms. 2. Schedule the Veteran for a VA examination to determine the nature, frequency and severity of his residuals of a TBI. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. Any appropriate diagnostic testing should be conducted and noted in the report. The examiner should identify all related TBI symptoms and functional impairment. The VA examiner is asked to consider the Veteran's February 2021 testimony that he has significant memory issues, prostrating headaches, and trouble understanding complex procedures. 3. Schedule the Veteran for an examination with an appropriate examiner to address the prior and current severity of his service-connected lumbosacral strain. Range of motion measurements of the Veteran's back must be included in both active and passive motion and in weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. The examiner must also assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up at the time of the examination, the examiner must still provide an estimated assessment, using lay observations elicited from the Veteran. The examiner must also discuss whether the Veteran experiences functional loss consistent with that contemplated by ankylosis, including during flare-ups. If it is not possible to provide any of the requested information, the examiner must thoroughly explain why this is so. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale indicating that the Veteran is not having a flare-up at the time of the examination, without more explanation, will not be deemed adequate. The VA examiner must specifically address the Veteran's February 2021 testimony that he has back spasms about 1 to 3 times per month lasting 45 minutes to an hour each and "can't really bend over [or] move too much" when it occurs. 4. Thereafter, obtain a VA examination from the necessary specialist regarding the nature and etiology of the Veteran's seizure disorder. The VA examiner must provide separate, well-reasoned opinions for the following: (a) Is it at least as likely as not that the Veteran's seizures onset in service or are otherwise directly related to service, to include IED explosions? (b) Is it at least as likely as not that the Veteran's seizures are caused or aggravated by his service-connected psychiatric disability? (c) Is it at least as likely as not that the Veteran's seizures are caused or aggravated by his service-connected TBI? (d) Is it at least as likely as not that the Veteran's seizures are caused or aggravated by medications he takes for his service-connected disabilities? In answering these questions, the VA examiner must address the Veteran's February 2021 lay contentions. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.