Citation Nr: 21042310 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-47 563 DATE: July 12, 2021 ORDER Service connection for a disability resulting in dizziness is denied. Service connection for an acquired psychiatric disability is denied. REMANDED Service connection for a back disability is remanded. A compensable rating for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran has a chronic disability resulting in dizziness or other such symptoms that result in a functional impairment of the Veteran's earning capacity. 2. The weight of the evidence is against a finding that an acquired psychiatric disability is etiologically related to, or aggravated by, service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability resulting in dizziness have not been met. 38 U.S.C. §§ 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Agency of Original Jurisdiction (AOJ). This case was previously before the Board in September 2019, when it remanded the Veteran's claims in order to afford the Veteran with additional examinations addressing the nature and etiology of his claimed disabilities. The Veteran underwent such examinations in January 2020. As such, the Board finds that the AOJ has substantially complied with its September 2019 remand directives, and it will proceed to a decision. The Veteran participated in a hearing before a Veterans Law Judge (VLJ) in June 2019. The Veteran was notified in April 2021, that the VLJ who conducted the June 2019 hearing was no longer available to participate in the adjudication of the Veteran's claim. The Veteran was also informed of his right to a new hearing. The Veteran was notified that the Board would assume that the Veteran did not wish to participate in an additional hearing if he did not respond within 30 days. To date, the Veteran has not responded to this letter, and the Board will proceed to a decision. The Board notes that service connection for low back disability was initially denied in a March 1979. The August 2013 rating decision appears to have initially denied a reopening of the claim. However, by the time the matter was readjudicated in a July 2017 statement of the case, the AOJ appears to have reopened the claim. In that regard, rather than making a determination as to whether new and material evidence had been submitted to reopen the previously denied claim, the Board remanded the service connection issue in its September 2019 Remand. Thus, at this juncture, and given the time that has passed, the Board interprets this action as an inferred reopening of the claim. 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; 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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As the above three-part test demonstrates, a valid claim for service connection requires proof of a present disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The term "disability" refers to a functional impairment of earning capacity, and subjective symptoms alone, even absent a formal diagnosis, may result in such a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). VA considers a disability to be "present" if a chronic disability exists at any time during the pendency of the claim for benefits, even if such disability resolves before VA's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183 (1993). To establish service connection on a secondary basis, there must be evidence of a current disability, a service connected disability, and medical evidence of a nexus between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Service Connection for a Disability Resulting in Dizziness The Veteran claims that he has a disability resulting in dizziness. He states his dizziness disorder is either a direct result of his active duty service or secondary result of his service-connected hearing loss and tinnitus disabilities. The Veteran did not seek treatment for dizziness during service. The Veteran's July 1974 separation examination indicated that the Veteran was neurologically normal. Following his separation from service, the Veteran filed a claim for service connection in June 2012. Since that time, clinicians have consistently found the Veteran to be neurologically normal, for example in February 2014, October 2014, July 2015, February 2016, September 2016, December 2018, and January 2020. The Veteran has not otherwise sought treatment for dizziness; to the contrary, the Veteran has expressly denied experiencing dizziness to clinicians, for example in December 2018 and January 2020. During his June 2019 hearing before the Board, the Veteran stated that a clinician found that his dizziness related to his service-connected hearing loss and tinnitus disabilities. In January 2020, following a physical examination of the Veteran and consideration of the Veteran's lay account of his symptoms, a VA examiner found that the Veteran did not suffer from a chronic disability resulting in dizziness, nor did the Veteran experience symptoms resulting in a functional impairment. In making this finding, the examiner noted the Veteran's report of experiencing intermittent dizzy spells during service. With that said, the Veteran reported that all of his symptoms of dizziness had resolved, and he no longer had difficulties with imbalance. Turning to an analysis of this evidence, the weight of the evidence is against a finding that the Veteran has a chronic disability resulting in dizziness. The Veteran has not sought treatment for dizziness, he has consistently been found to be neurologically normal, and he has expressly denied experiencing dizziness to clinicians. Furthermore, the January 2020 examiner noted that the Veteran expressly denied experiencing dizziness and otherwise found the Veteran not to have a disability or functional impairment associated with dizziness. The Board acknowledges that subjective complaints alone may indeed constitute a disability, even absent a current diagnosis. See Saunders. In this case, however, the January 2020 examiner, upon consideration of the evidence of record, including the Veteran's denial of experiencing any current symptoms, found the Veteran not to have a disability or functional impairment associated with dizziness. To the extent that the Veteran believes that he has a disability resulting in dizziness, the Board notes that the Veteran is competent to testify as to readily observable symptoms. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran, as a layperson, is not competent, however, to report that any symptoms that he experiences rise to the level of a "disability" for VA purposes. Thus, while the Veteran may experience certain symptoms, his statements are not sufficient to establish the presence of a disability resulting in dizziness, or even a functional loss associated with such symptoms. In sum, the weight of the evidence is against a finding that the Veteran's subjective complaints of dizziness have resulted in a functional impairment for which service connection may be granted. The claim for service connection is denied. Service Connection for an Acquired Psychiatric Disability The Veteran claims that he has an acquired psychiatric disability either as the direct result of his in-service experiences or as the secondary result of his service-connected bilateral hearing loss disability. The Veteran did not seek treatment for psychiatric symptoms during service. In his July 1974 separation examination, the Veteran was noted to be psychiatrically normal. Following his separation from service, the Veteran filed a claim for service connection in June 2012. In March 2014, a clinician noted that the Veteran had symptoms consistent with mild anxiety, mild depression, and severe posttraumatic stress disorder (PTSD). In February 2016, the Veteran reported that during service, he "found a friend who [had] hung himself", a "friend who [had] overdosed on drugs", "another who slit his wrist", "found a peer's body in a bush", and had a friend "die. . . right there in [his] arms" following an armed robbery. During his June 2019 hearing before the Board, the Veteran's representative stated that the Veteran's service-connected bilateral hearing loss disability "might be the contributing factor or the nexus" to the Veteran's development of an acquired psychiatric disability. The Veteran's representative otherwise broadly stated that the Veteran "was exposed to different situations" during service that led him to develop an acquired psychiatric disability. The Veteran underwent a VA examination in January 2020, at which time the Veteran reported that he first experienced anxiety during service when he was forced to stand on the "yellow footsteps" for hours. The examiner diagnosed the Veteran with generalized anxiety disorder with panic attacks. With regard to a connection between the Veteran's acquired psychiatric disability and his active service, the examiner initially stated that it was at least as likely as not that the Veteran's active duty service caused his acquired psychiatric disability. Reference was made to the Veteran experiencing his first panic attack during active service and continuous similar/related symptoms since that time. An addendum opinion was obtained in September 2020. The examiner revised his opinion to find that it was less likely than not that the Veteran's active duty service caused his acquired psychiatric disability. As a rationale for this opinion, the examiner noted that the Veteran's service treatment records did not support his claims that he first experienced panic attacks during service. With regard to a secondary connection between the Veteran's acquired psychiatric disability and his service-connected bilateral hearing loss disability, the examiner concluded that it was less likely than not that the Veteran's service-connected bilateral hearing loss disability caused or his acquired psychiatric disability. The examiner noted that the Veteran himself stated that his hearing-related challenges did not contribute to his anxiety. Instead, the examiner found that the Veteran tolerated his difficulty hearing "quite well". Turning to an analysis of this evidence, the Veteran has been diagnosed with an acquired psychiatric disability. The weight of the evidence is, however, against a finding that the Veteran's current acquired psychiatric disability is related to his active duty service or to a service-connected disability. In making this determination, the Board places great probative weight on the opinion of the January 2020 examiner (as amended in September 2020) that the Veteran's acquired psychiatric disability was not likely related to his service. The opinion was offered by a medical professional who considered and discussed the pertinent evidence of record. Even if, however, the January 2020 examiner had not amended his initial opinion linking the Veteran's acquired psychiatric disability to his service, such a nexus opinion would be insufficient. The initial positive opinion rendered in January 2020 was based only on the history that the Veteran reported, which is inconsistent with his service treatment records. Specifically, as noted, the service treatment records are negative for complaints, treatment, or diagnosis of any acquired psychiatric disorder. There are no references to panic attacks. Moreover, when he filed his claim for compensation in February 1979, which was problems related to his back and hearing, the Veteran did not report a history of panic attacks. Had he been experiencing chronic psychiatric problems since service, it would certainly stand to reason that such would have been reported at that time. The absence of pertinent findings of psychiatric problems in service and complaints within a four year period after service undermines the more recent report of the Veteran experiencing panic attacks or similar symptomatology since service. The Board also notes that the Veteran made no reference to his active service or to in-service stressor event when he was initially seen for complaints of panic attacks in 2014. It was not until 2016 when he appears to have reported the onset of his psychiatric problems to his active service. In short, as the Veteran's reported history of chronic psychiatric problems, to include panic attacks, is not found to be credible, the medical opinion based on that history is afforded reduced probative value. To the extent that the Veteran asserts that his acquired psychiatric disability is related to his active service or to his service-connected bilateral hearing loss disability, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, VA provided the Veteran with an examination based on the competency of those observations. Lay persons are also competent to provide opinions on some medical issues, such as when the Veteran began experiencing readily observable psychiatric symptoms. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The issue of causation of a psychiatric disability, however, is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's acquired psychiatric disability is related to his service, the Board affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, because such evidence was provided by a medical professional and concerned the Veteran's psychiatric symptoms, the functioning of which is not readily perceivable by the use of a person's senses. The weight of the evidence is against granting service connection for an acquired psychiatric disability, and the claim is denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service Connection for a Back Disability The Veteran underwent a VA examination in August 2013, at which time the examiner diagnosed the Veteran with degenerative joint disease, kyphoscoliosis, facet arthropathy, and spondylotic spurs. The examiner opined that it was less likely than not that the Veteran's back disability related to his service because the Veteran's back disability was more likely than not congenital in nature. Upon review of this examination report, the Board, in September 2019, remanded the Veteran's claim in order to obtain an opinion assessing whether the Veteran's back disability preexisted service, and if not, whether it was at least as likely as not that such disability was related to the Veteran's active duty service. The Veteran underwent a VA examination in January 2020 with an October 2020 addendum opinion, and the Board finds such opinions to be inadequate. The examiner, without conducting diagnostic testing, stated that the Veteran did not have a back disability. Contrary to this finding, the Veteran has indeed been diagnosed with a back disability since filing his claim for service connection. For example, in August 2013, an examiner diagnosed the Veteran with degenerative joint disease, kyphoscoliosis, facet arthropathy, and spondylotic spurs. Furthermore, despite finding the Veteran not to have a back disability, the examiner opined that it was "not conclusive" that the Veteran's back disability related to his active duty service. The examiner's opinion applies an incorrectly high standard of proof; service connection requires only equipoise of the evidence, not "conclusive" evidence. Additionally, the examiner did not discuss the Veteran's February 1971 in-service treatment for a back disability, at which time he was assessed with a muscular back strain and placed on light duty for 5 days. Accordingly, the Veteran should be afforded with an additional examination addressing the nature and etiology of his back disability. Increased rating for a Bilateral Hearing Loss VA treatment records obtained following the Board's September 2019 remand indicate that the Veteran has undergone audiological testing, but the results of such testing have not been associated with the record. For example, in July 2020, a VA audiologist noted that the Veteran participated in audiological testing, but results of this audiological testing have not been associated with the record. This matter is REMANDED for the following actions: 1. Afford the Veteran with an additional examination addressing the nature and etiology of his back disability. After conducting a physical examination of the Veteran and ordering all necessary diagnostic testing, the examiner should: (a.) Describe the nature of the Veteran's back disability, even if such back disability has resolved at the time of the examination. If the examiner finds that the Veteran has not had a back disability at any time during the appeal, such opinion should be reconciled with the evidence, for example dated August 2013, that the Veteran indeed had a diagnosed back disability. (b.) Address whether it is clear and unmistakable (that is, obvious, manifest, and undebatable) that the Veteran's back disability existed before his entry into active service. (c.) If, and only if, it is clear and unmistakable that the Veteran's back disability existed before his entry into active service, then address whether it is clear and unmistakable that the Veteran's back disability was not aggravated by the Veteran's active service. (d.) If, and only if, it is not clear and unmistakable that the Veteran's back disability existed before his entry into active service, then address whether it is at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran's back disability related to his active duty service, to include as a result of his 1971 in-service treatment for a back injury. 2. Obtain and associate with the claims fall all outstanding results of audiological testing, including audiograms dated from July 2020. Inform the Veteran if any requested records cannot be obtained. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.