Citation Nr: 25005014 Decision Date: 04/14/25 Archive Date: 04/14/25 DOCKET NO. 14-99 835A DATE: April 14, 2025 ORDER Service connection for right leg disability is denied. A compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for skin disability is remanded. Entitlement to service connection for left leg disability is remanded. Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) prior to January 8, 2025, is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had a right leg disability at any time during or approximate to the pendency of the claim. 2. Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level II in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a right leg disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to November 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal of a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2024, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. These claims were previously before the Board in September 2024 at which time the Board remanded the claims for further development. The Board finds that development is partially complete. 1. Service connection for right leg disability In September 2011, the Veteran sought to reopen the previously denied claim for service connection for a leg disability. He testified that he "knocked a hole in [his] leg" above the ankle in service and did not seek treatment. See Hearing Transcript (February 2024). The September 2024 Board remand instructed that the leg on appeal be identified on examination. See BVA Decision (September 2024). On examination in January 2025, the Veteran reported that he slipped in the rain and got a hole in his left leg that he cleaned out himself. See C&P Exam (January 2025). The Board finds that the most persuasive evidence of record does not reflect that the Veteran has a current right leg disability during or approximate to the filing of the claim. The Veteran has not claimed to have a right leg disability related to service during the pendency of the appeal. STRs reflect no complaints or treatment for right leg disability. Though a February 2014 x-ray reflects "mild to moderate degenerative joint disease," VA treatment records to December 2024 reflect no complaints, treatment, or diagnosis for a right leg disability. See CAPRI at 941 (September 2023). January 2025 VA examination found no past diagnosis or current evidence of any right leg condition. See C&P Exam. The Veteran reported no functional loss or impairment of the right leg, and the Veteran had full range of motion of the undamaged joint with no evidence of pain. As neither the lay nor the medical evidence reflects competent, credible evidence of functional loss of the right leg, a current disability is not shown during or approximate to the filing of claim. It is noted that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability due to in service disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. A compensable rating for bilateral hearing loss The Veteran seeks a higher rating for bilateral hearing loss. He testified he was "hoping they can get it fixed." See Hearing Transcript at 5 (February 2024). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A January 2025 VA examination for hearing loss reflects the Veteran's report of having great difficulty hearing. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Hertz 1000 Hz 2000 Hz 3000 Hz 4000 Hz AVG CNC Right 45 dB 30 dB 50 dB 65 dB 48 90 Left 40 dB 35 dB 60 dB 60 dB 49 90 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including having to turn the TV up loud to hear and being unable to hear his wife speaking to him. See C&P Exam (January 2025). The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Additionally, service connection is the remedy where disability is shown to be caused by an injury in service. Ratings are based on the current level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As explained above, a higher rating for service-connected hearing loss is not warranted. Accordingly, the weight of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the evidence persuasively weighs against the Veteran's claim, the doctrine is not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, the claim is denied. REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Indeed, the Board expressly defers a credibility determination in this appeal until the development has been completed to the extent feasible. 1. Service connection for skin disability 2. Service connection for left leg disability To ensure that VA has met its duty to assist, remand is required. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In September 2024, the Board remanded these claims for, among other things, opinions on the etiology of the claimed conditions which addressed the Veteran's statements about injuries in service and explained the examiner's positive or negative conclusions. The Board finds that the obtained January 2025 VA medical opinions for skin and left leg disability are inadequate. The opinions are almost identical and state: Based on review of the available evidence, it is less likely than not that the claimed condition is due to service as there is a lack of substantiating evidence supporting a nexus between the current diagnosis of [claimed condition] and military service. Without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology. The opinions do not reflect any analysis or application of the facts to form an opinion or provide a rationale for the conclusion reached. The opinions reached are conclusory, so not address the Veteran's lay statements as instructed in the prior remand, and are bereft of a rationale for the conclusions reached. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the obtained VA medical opinions was not adequate, remand is required. 3. A rating higher than 70 percent for PTSD prior to January 8, 2025 The Veteran seeks a total rating for his service-connected PTSD for the entirety of the period on appeal. In January 2012, the RO granted service connection for PTSD at a 70 percent disability rate effective September 5, 2006. In January 2013, within one year of the initial decision, the Veteran appealed seeking a higher rating. This is construed as a disagreement with the initial decision. A February 2025 rating decision granted a 100 percent rating for PTSD, effective January 8, 2025, but failed to address periods prior. After careful consideration, the Board finds that the medical evidence is inadequate to decide the appeal. The medical record requires clarification and a retrospective medical opinion in this matter. A medical evaluation as to the severity of the Veteran's PTSD symptoms for the periods between May 2011 and January 2025 has not been obtained. Therefore, the Board cannot make a fully informed decision on the issue of a rating higher than 70 percent for PTSD. Accordingly, a remand is necessary for a retrospective opinion on the severity of the Veteran's service-connected PTSD during the appeal period. The matters are REMANDED for the following action: 1. Obtain an opinion from a qualified clinician to determine whether any skin or left leg disability found during the period on appeal is related to the Veteran's military service. The clinician must explain why the conclusion was reached. The claims file, including a complete copy of this remand, must be made available to the examiner for review. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms, to include having a bolt stuck in his leg above his ankle as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Additionally, is there evidence of 2. Following a review of the record, the clinician should provide retrospective findings to supplement the January 2025 VA examination report for mental health disabilities. Specifically, the medical examiner is asked to determine whether, during the period between May 2011 and January 2025, the Veteran's service-connected PTSD caused total occupational and social impairment. 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. R. Bisignani Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards, 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.