Citation Nr: 22037726 Decision Date: 06/30/22 Archive Date: 06/30/22 DOCKET NO. 18-23 950 DATE: June 30, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for low back strain with degenerative disc disease, status post surgery (claimed as chronic back condition), is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder (claimed as depression/adjustment disorder) is remanded. Entitlement to non-service-connected disability pension benefits is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had bilateral hearing loss for VA compensation purposes at any time during or approximate to the pendency of the claim. 2. The evidence of record persuasively weighs against finding that tinnitus began during active service, manifested within the first post-service year, or is otherwise related to an in-service injury or disease. 3. The evidence of record persuasively weighs against finding that a low back strain with degenerative disc disease, status post surgery (claimed as chronic back condition), began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a low back strain with degenerative disc disease, status post surgery, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1971 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) January 2015 rating decision. The Board notes that, per his request, the Veteran was scheduled for a Board hearing in February 2022 but failed to appear for it. To date, he has not requested his hearing be rescheduled or shown good cause for his failure to appear for the scheduled hearing. Thus, the Board finds that the Veteran's hearing request is deemed withdrawn, see 38 C.F.R. § 20.603(d), and the Board may proceed to adjudicate his appeal without prejudice to him. 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). Moreover, certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss that is related to his military service. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a hearing loss disability for VA purposes 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). With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection: "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). While the Veteran believes he has a current diagnosis of bilateral hearing loss, he is not competent to provide a diagnosis in this case because the issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. VA treatment records show the Veteran reported subjective hearing loss and he was referred for evaluation. In October 2013, he underwent a VA audiology consultation at which he denied having noise exposure while in the military. It was noted that pure tone testing showed his right hearing was within normal limits with mild sensorineural hearing loss at 4000 Hertz and his left hearing was within normal limits with mild sensorineural hearing loss at 6000 to 8000 Hertz. His speech recognition was 100 percent bilaterally. Testing was accomplished using the W22 word list. The impression was bilateral hearing was within normal limits with borderline normal to mild high frequency hearing loss. However, on VA examination in December 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 15 25 LEFT 15 15 20 25 20 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. The examiner assessed the Veteran to have normal hearing in the right ear and sensorineural hearing loss in the frequency range of 6000 to 8000 Hertz in the left ear. Thus, the December 2014 VA examination does not establish that the Veteran has a hearing loss disability for VA compensation purposes as audiometry does not show he had a pure tone threshold of 26 decibels or greater in at least three frequencies or 40 decibels or greater in at least one frequency. Nor does it show that his speech recognition is 94 percent or less bilaterally. The Board acknowledges that the October 2013 audiology consultation note shows an impression of bilateral hearing within normal limits with borderline normal to mild high frequency sensorineural hearing loss. However, that test was conducted using the W22 word list rather than the Maryland CNC as required by VA for rating purposes. Hence, the October 2013 audiogram is not adequate to determine whether the Veteran has a hearing loss disability for VA compensation purposes, and the only probative evidence in this regard is the December 2014 VA examination. Based on the foregoing, the Board finds that the Veteran does not have a current hearing loss (whether bilateral or unilateral) disability for VA compensation purposes. As such, his appeal must be denied as he does not have a current disability for which service connection may be warranted. 2. Entitlement to service connection for tinnitus The Veteran is seeking service connection for tinnitus, but he has not submitted any argument as to why his tinnitus is related to his military service. The Veteran has a current diagnosis of tinnitus as evidenced by the December 2014 VA examination. Tinnitus is considered an organic disease of the nervous system and, therefore, is an enumerated presumptive chronic disease under 38 C.F.R. § 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran did not report symptoms of tinnitus until September 2012, decades after his separation from service and outside of the applicable one-year presumptive period. At an October 2013 VA audiology consultation, the Veteran reported a history of bilateral and intermittent tinnitus with an onset 30 years before described as a hissing, whistling or humming noise. He denied having military and occupational noise exposure but reported recreational noise exposure during use of lawn equipment (i.e., mower and/or weed eater). In contrast, the December 2014 VA examination report indicates the Veteran reported the onset of tinnitus was while he was in the military but does not indicate that he reported having noise exposure during his military service. The examination notes that the Veteran's military occupational specialty (MOS) was Cook and post-service occupations were "Loading Dock" and "Drug and Alcohol Treatment profession." While the Veteran is competent to report having experienced symptoms of tinnitus and their onset, the Board does not find his report of an onset in service to be credible given his inconsistent reports of its onset, his failure to report an exposure to damaging noise while in service, and his military MOS of Cook. The service treatment records are silent for complaints or diagnosis of tinnitus or similar symptoms. More significantly, the Veteran's MOS of Cook is one that is considered to have a low probability to military noise exposure. Moreover, the Veteran denied being exposed to military noise exposure at the October 2013 VA audiology consultation. The Board notes that the RO has not conceded military noise exposure, and the Board agrees that the evidence does not support finding that the Veteran was exposed to military noise. Furthermore, the Veteran reported at the October 2013 VA audiology consult that the onset of his tinnitus was 30 years ago, which would place the onset in or around 1987, which is approximately 13 years after the Veteran's discharge from active service. This statement contradicts the Veteran's statement at the December 2014 VA examination that his tinnitus began during his military service. The Board gives more probative weight to competent medical evidence, which does not establish a relationship between the Veteran's tinnitus and his active military service. The December 2014 VA examiner opined that the Veteran's tinnitus is not at least as likely as not related to an in-service injury, event, or disease, but rather is a symptom associated with his hearing loss. While the Veteran may believe that his tinnitus is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Based on the foregoing, the Board finds that the evidence persuasively weighs against finding that the Veteran's tinnitus had its onset during or is otherwise related to his active military service. As such, his appeal must be denied as service connection for tinnitus is not warranted. 3. Entitlement to service connection for low back strain with degenerative disc disease, status post surgery (claimed as chronic back condition) Initially, the Board notes that a claim for service connection for the Veteran's chronic back condition was denied in a January 2010 decision, which he did not appeal. At the time of that decision, service treatment records were not available. In October 2012, the Veteran filed a new claim for service connection for his chronic back condition and the Veteran's service treatment records were associated with the claims file in April 2013, which showed relevant treatment for his low back. Hence, the Board finds that the Veteran's claim will be reconsidered on the merits without requiring new and material evidence to reopen. See 38 C.F.R. § 3.156(c)(1). The Veteran has not submitted any statements to support his claim for service connection for his chronic back condition. However, at a December 2014 VA examination, he reported that he injured his back in basic training in 1971. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of low back strain and degenerative disc disease, status post spinal surgery, and evidence shows that a low back strain was incurred in service in April 1973, the persuasive evidence of record weighs against finding that the Veteran's diagnosed chronic back disorder began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records show the Veteran injured his back while playing basketball in April 1973 and was assessed to have lumbar strain. On follow up in May 1973, he reported improved back pain but that it was still "hurting a little" and was assessed with myalgia. No further treatment is seen in the service treatment records. The Veteran denied having recurrent back pain at his February 1974 separation examination and no spine abnormalities were noted on examination. VA treatment records show the Veteran reported in February 2012 having a history of low back surgery in approximately 2000 for a ruptured disc. He denied any current problems except that his low back was occasionally stiff and uncomfortable. In September 2012, the Veteran reported still having intermittent low back pain but generally getting around fine. In September 2013, he complained of chronic low back pain just above the belt line and denied radicular symptoms since the 2000 surgery. October 2013 X-rays of the lumbar spine showed moderate to severe degenerative disc disease. At the December 2014 VA examination, the Veteran reported he injured his back in basic training in 1971, but that he did not follow up with his physician for back pain after service until 2000 when he began to have pain radiating down his right leg and ended up having surgery on his back. At the time of the examination, he reported having no back pain, just stiffness. The examiner diagnosed him to have lumbar strain and degenerative disc disease, status post spinal surgery. The examiner opined that it is less likely than not that the Veteran's current back condition is related to the service injury because the evidence shows the Veteran's in-service back injury resolved while he was in service. Although the Veteran had back surgery in 2000, there is no medical evidence to show a continuous back problem throughout service that then led to back surgery 26 years later. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has not submitted any opposing evidence except his own statements. While the Veteran is competent to report having experienced symptoms of back pain, he is not competent to provide a diagnosis in this case or a nexus opinion as this issue is medically complex as it requires specialized medical knowledge and the ability to interpret complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2014 VA examiner's opinion. Based on the foregoing, the Board finds that the evidence persuasively weighs against finding that the Veteran's chronic back disorder had its onset during or is otherwise related to his active military service. As such, his appeal must be denied as service connection is not warranted. REASONS FOR REMAND For the reasons set forth below, the Board remands the Veteran's claims for service connection for an acquired psychiatric disorder and entitlement non-service-connected disability pension benefits for additional development. As this remand is interlocutory in nature, the Board intimates no opinion on the credibility of the lay reports of record at this time unless explicitly stated otherwise. See Miller v. Wilkie, 32 Vet. App. 249, 259-62 (2020). 1. Entitlement to service connection for an acquired psychiatric disorder (claimed as depression/adjustment disorder) The Veteran contends that his current acquired psychiatric disorder, claimed as depression/adjustment disorder, is related to racism he experienced while in service. See April 2014 VA Form 21-0820. The Veteran filed his claim for service connection for "depression/adjustment disorder" in October 2012. VA treatment records from September 2012 to April 2014 show the Veteran was diagnosed with an acquired psychiatric disorder, to include adjustment disorder with depressed mood and depressive disorder not otherwise specified, but do not show any complaints of or treatment for mental health problems thereafter. The Veteran's service treatment records show that he underwent inpatient psychiatric evaluation for five days in October 1973 due to complaints of feeling unhappy, having gotten into a fight or two (at least with a knife) and having demonstrated as well as spoken of violence. He was also noted to have family problems. The inpatient treatment notes for this hospitalization show the Veteran reported concern over his wife as she was being hassled by her father with whom she was living. He also expressed some resentment over his treatment in the Air Force. However, at no time was there evidence of any psychiatric disease and he was returned to duty feeling somewhat better. At his February 1974 separation examination, the Veteran reported no history of any mental disorder (although his mental health hospitalization was noted) and no psychiatric abnormalities were noted on examination. The Veteran underwent VA examination in December 2014. However, the examiner failed to find that the Veteran had any current psychiatric disorder at the time of the examination. The examiner stated that the medical record does not indicate the presence of pre-existing psychiatric problems at the time of the Veteran's entry into the military or at the time of his separation from the military. There is evidence that he was seen in mental health and hospitalized for five days; however, according to those hospital records, the Veteran was never diagnosed with a mental health disorder of any kind. In fact, it was documented that there was "no (mental health) disease found." Moreover, although the Veteran suffered substance abuse problems following his military service, he reportedly went through treatment and has been clean and sober for many years now. In the current interview, he stated that his mood is "fine" and denied any current symptoms of depression, anxiety or substance abuse. Psychometric testing also was indicative of very good current psychological functioning. As such, the examiner stated that the Veteran does not presently meet DSM-5 criteria for any mental health disorder. Given the diagnoses seen in the VA treatment records, the Board finds that the Veteran had a current disability during the appeal period, alternatively diagnosed as adjustment disorder with depressed mood and depressive disorder, not otherwise specified, even though it appears that his psychiatric disorder resolved at sometime between January 2014 (the last mental health treatment note) and December 2014 (the VA examination). Thus, the criterion for a current disability is met. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement for current disability is satisfied when the claimant has a disability at the time a claim for service connection is filed or during the pendency of the claim). However, in providing an opinion, the examiner failed to address the diagnoses seen in the VA treatment records. Thus, the examiner did not provide an opinion as to whether the psychiatric disorder diagnosed in the VA treatment records is related to the Veteran's military service, especially due to the claimed discrimination he experienced therein. Such an opinion is needed to inform the Board of the medical question at issue and, therefore, remand is necessary to obtain such an opinion. 2. Entitlement to non-service-connected disability pension benefits is remanded. In October 2012, the Veteran claimed he was unable to work due to chronic depression and a chronic back condition and sought VA non-service-connected disability pension benefits. He reported on his initial application that he had no income. The RO initially denied the claim finding the Veteran was not permanently and totally disabled. In the March 2018 statement of the case (SOC), the RO continued the denial of pension benefits based on a finding of no permanent and total disability prior to September 2014 but denied after then based on a finding that the Veteran's income exceeded the maximum allowed for a veteran with no dependents. The finding of excessive income was based upon a data match with the Social Security Administration (SSA) showing the Veteran was awarded SSA retirement benefits as of September 2014. However, the data match associated with the claims file does not show the Veteran's SSA benefits prior to January 2016. Furthermore, the data match associated with the claims file indicates that the Veteran's payments were deferred until August 2018. Thus, the Board is unable to perform a de novo review based on the SSA data associated with the claims file. Moreover, based on the data of record, it is unclear when the Veteran began receiving payment of SSA benefits. Thus, remand is warranted to obtain a payment history of the Veteran's SSA benefits. Furthermore, although the Veteran indicated he had no income when he filed his claim in October 2012, there is evidence indicating he worked as a self-employed counselor and received unemployment benefits. The evidence shows the Veteran worked full-time until 2011 when the substance abuse program he managed was closed because it was defunded. In October 2011, he moved from Ohio to North Carolina and lived with his son until about September 2013 when he moved back to Ohio to take care of his ailing mother. An August 2012 VA Homeless Program note shows the Veteran reported that he had planned to continue working in North Carolina as a Drug and Alcohol Counselor but that he had problems transferring his license and, therefore, had not been able to find work. However, in October 2013, after his return to Ohio, he reported at a Psychiatry consultation that he had worked in private practice as a Licensed Chemical Dependency Counselor while in North Carolina and that he had also received some unemployment benefits while there. Furthermore, he reported at the December 2014 VA mental health examination that he was working on opening a new program and that he was financially supported via some individual counseling work he was doing. Thus, it appears that the Veteran had income between October 2012 and September 2014, but he has not provided such information to VA, which is necessary to determine his entitlement to pension benefits. He was advised of this in the March 2018 SOC, but the RO has never sent him a duty to assist letter requesting such information. Therefore, on remand, the Veteran should be provided notice of what information and evidence is needed to substantiate his claim for VA pension benefits and allowed a reasonable opportunity to respond. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from the VA Medical Center in Ann Arbor, Michigan, for the period from March 2018 to the present. 2. Thereafter, obtain an addendum opinion after review of the record from an appropriate clinician regarding the Veteran's claim for service connection for an acquired psychiatric disorder. An in-person examination should not be scheduled unless requested by the clinician providing the requested medical opinion. After reviewing the evidence of record, the clinician should opine as to whether the Veteran's acquired psychiatric disorder, diagnosed by his treating physicians as either adjustment disorder with depressed mood or depressive disorder (depression) not otherwise specified, is at least as likely as not related to any injury, disease or event incurred during active military service, to include the October 1973 in-service mental health treatment and the alleged racist/discriminatory treatment of the Veteran. The clinician should specifically review and discuss the VA treatment records from February 2012 to January 2014 showing complaints of and treatment for mental health problems in contrast to the December 2014 VA examination showing the Veteran had no mental health diagnosis. The clinician should consider and discuss whether there is sufficient evidence to establish that the Veteran has had a chronic psychiatric disorder at the time he filed his service connection claim in October 2012 or anytime thereafter. The examiner is advised that an opinion based solely the lack of diagnosis at the December 2014 VA examination is not adequate since the VA treatment records show a diagnosis after mental health evaluation. Finally, in rendering an opinion, the examiner should consider and discuss as necessary the Veteran's lay statements (including those seen in the treatment records) as to onset in service and a continuity since, if any. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The clinician is advised that the Board has not as yet made any credibility determinations with respect to the Veteran's reports of pertinent history. 3. Contact SSA and request a payment history for the Veteran's benefits from September 2014 to the present. 4. Send the Veteran a duty to assist letter advising him of the information and evidence still needed to adjudicate his claim for entitlement to VA non-service-connected disability pension benefits, to include, but not limited to, his income, net worth and medical expenses since October 2012. The Veteran should be advised that he must report all income earned from any sources, to include self-employment as a counselor and unemployment benefits that he received from October 2012 to the present. The Veteran should be provided with the VA forms necessary to report his income, net worth, and medical expenses to VA to support his pension claim. The Veteran should be afforded a reasonable time to submit a response. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.