Citation Nr: 1761164
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 12-11 286A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California

THE ISSUES

1. Entitlement to service connection for a back disorder.

2. Entitlement to service connection for a bilateral upper extremity orthopedic disorder, to include the shoulders and elbows.

3. Entitlement to service connection for hypertension.

4. Entitlement to service connection for diabetes mellitus.

5. Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disorder, emphysema, and asbestosis.

6. Entitlement to service connection for posttraumatic stress disorder.

7. Entitlement to service connection for a bilateral upper extremity neurological disorder, to include the wrist and fingers.

8. Entitlement to an initial rating in excess of 30 percent for aortic valvular disease, status post aortic valve replacement.

9. Entitlement to an initial rating in excess of 10 percent for bilateral glaucoma.

10. Entitlement to an initial compensable rating for bilateral sensorineural hearing loss.

REPRESENTATION

Appellant represented by: Military Order of the Purple Heart of the U.S.A.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Mary E. Rude, Counsel

INTRODUCTION

The Veteran served on active duty from July 1955 to August 1974. He died in August 2011, and the appellant is his surviving spouse.

This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the San Diego, California, Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the appellant testified before the undersigned Veterans Law Judge at a travel board hearing. In April 2016, the issues were remanded for further development.

The Board notes that the April 2016 remand listed issues of entitlement to service connection for bilateral shoulder disorders, bilateral elbow disorders, and bilateral wrist and finger disorders. The Board has recharacterized the issues as entitlement to service connection for a bilateral upper extremity orthopedic disorder and a bilateral upper extremity neurological disorder in order to better represent the contentions of the Veteran and the appellant. Clemons v. Shinseki, 23 Vet. App. 1, 5-8 (2009).

The appellant has submitted medical evidence indicating that the Veteran died following surgery for aortic insufficiency. Because the Veteran was service connected for aortic valvular disease, the Board finds that this submission constitutes an informal claim of entitlement to service connection for the cause of the Veteran’s death. The issue is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9(b) (2017).

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to an increased rating for aortic valvular disease, and entitlement to service connection for hypertension, a lung disorder, and a bilateral upper extremity neurological disorder addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.

FINDINGS OF FACT

1. The Veteran’s best-corrected vision was no worse than 20/50 in the right eye and 20/25 in the left eye.

2. The Veteran’s bilateral hearing loss was manifested by no worse than Level II hearing in the right ear and Level III hearing in the left ear.

3. Resolving reasonable doubt in the Veteran’s favor, he is found to have served on the land mass of the Republic of Vietnam.

4. The competent medical evidence of record establishes that the Veteran had a diagnosis of diabetes mellitus.

5. Resolving reasonable doubt in the appellant’s favor, a VA psychologist diagnosed the Veteran with posttraumatic stress disorder due to stressors related to incidents in service and to a fear of hostile military or terrorist activity.

6. The preponderance of the evidence is against finding that a back disorder was incurred in or is related to active duty service.

7. The preponderance of the evidence is against finding that a bilateral upper extremity orthopedic disorder was incurred in or related to active duty service.

CONCLUSIONS OF LAW

1. The criteria for an initial evaluation higher than 10 percent for bilateral glaucoma have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.102, 3.321, 4.75, 4.76, 4.76a, 4.77, 4.79 (2017); 38 C.F.R. §§ 4.75, 4.76, 4.84a, Diagnostic Codes 6013, 6061-6079 (2007).

2. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2017).

3. Diabetes mellitus is presumed to have been incurred inservice. 38 U.S.C. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).

4. Posttraumatic stress disorder was incurred in the Veteran’s service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2017).

5. A back disorder was not incurred or aggravated in service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304.

6. A bilateral upper extremity orthopedic disorder was not incurred or aggravated in service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).

Glaucoma

The Veteran asserted that his service-connected glaucoma warranted an initial rating higher than 10 percent.

Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2017).

The schedular criteria for rating eye disabilities were amended during the pendency of the appeal. These new regulations apply only to claims filed on or after December 10, 2008. In this case, the Veteran submitted the claim of entitlement to service connection for an eye disorder in November 2005, and the current increased rating claim stems from the initial 10 percent rating assigned following this claim. As such, the new regulations are not applicable.

The Veteran’s bilateral glaucoma was rated under Diagnostic Code 6013, which provides for a 10 percent minimum rating for glaucoma, simple, primary, noncongestive. For higher ratings, the Diagnostic Code advises to “[r]ate on impairment of visual acuity or field loss.” 38 C.F.R. § 4.84a, Diagnostic Code 6013 (2007).

Diagnostic Code 6012 allows for a 100 percent rating when there is congestive or inflammatory glaucoma with frequent attacks of considerable duration; in this case, there is no medical evidence that the Veteran had congestive or inflammatory glaucoma or had any attacks of this nature, and this diagnostic code is not applicable. 38 C.F.R. § 4.84a, Diagnostic Code 6012 (2007).

The rating criteria for evaluating eye disabilities in effect prior to December 10, 2008, provided that, in rating impairment of visual acuity, the best distant vision obtainable after best correction with corrective lenses will be the basis of rating. 38 C.F.R. § 4.75 (2007). When loss of vision in one eye is 20/40 or better, vision in the other eye must be 20/50 or worse to warrant a compensable rating of 10 percent. 38 C.F.R. § 4.84a, Diagnostic Code 6079 (2007). For a 20 percent rating when one eye is 20/40, the other eye must be at least 20/200 or 15/200. 38 C.F.R. § 4.84a, Diagnostic Code 6077 (2007). For a 20 percent rating when one eye is 20/50, the other eye must be

In this case, the Board finds that applying the medical evidence to the relevant rating criteria, an initial rating higher than 10 percent is not warranted. The Veteran’s private medical records show regular eye examinations due to continuing eye problems throughout the appeal period. In August 2005, his corrected vision was 20/25-2 in both eyes, and in November 2005 it was 20/30 in both eyes. In July and December 2006, he was noted to have 20/30-2 and 20/25 vision. In February 2007, his vision was 20/50-3 in the right eye and 20/25-2 in the left eye, while at another examination that month it was 20/25-1 in both eyes. In July 2007, his vision was 20/40-2 in the right eye and 20/30-2 in the left eye. Another July 2007 evaluation found vision of 20/30 in both eyes. In May 2007, his vision was 20/25 and 20/30. In September 2007, the Veteran had right eye visual acuity of 20/40, and at another evaluation that month he had 20/30 vision in both eyes. In May 2008, he had vision of 20/40 in the right eye and 20/30 in the left eye. In January 2009, he had vision of 20/30 in both eyes.

At a May 2009 VA eye examination, the Veteran denied any ocular pain, redness, swelling, visual distortion, enlarged images, glare, halos, or peripheral vision complaints. He did not have any problems with uncorrected distance vision, but he did have blurred uncorrected near vision in each eye, which was corrected with the use of over-the-counter reading glasses. Both of the lenses in his eyes had been removed and replaced with implants. He reported having a bubble superior in the cornea of the right eye that he was told not to rub. Physical examination found best-corrected distance visual acuity of 20/30 in the right eye and 20/25 in the left eye. Best-corrected near visual acuity was 20/20 in each eye. The Veteran did not have anisometropia or three or more diopters. He did not have diplopia, and there were no retinal hemorrhages, exudates, or cotton wool spots in the eyes. The examiner diagnosed the Veteran with bilateral glaucoma, pseudophakia, band keratopathy. The Veteran stated that he did not feel that any of his eye conditions affected his usual occupation or daily activities.

The medical evidence therefore does not show that an initial rating higher than 10 percent was warranted at any time during the appeal period. At no time was the Veteran’s visual acuity worse than 20/50 in the right eye or worse than 20/25 in the left eye. Therefore, the criteria for an increased rating were not met. 38 C.F.R. § 4.84a, Diagnostic Codes 6077-6078 (2007).

Loss of vision may also be rated based on impairment of the field of vision under 38 C.F.R. § 4.84a, Diagnostic Code 6080 (2007). Visual field impairment is measured using 38 C.F.R. § 4.76a, Table III. Under the applicable rating schedule Diagnostic Code 6080 provided a 10 percent rating for unilateral concentric contraction of the visual field of 60 degrees to 16 degrees; loss of the nasal half of the visual field unilaterally; or loss of the temporal half of the visual field unilaterally. A 20 percent rating was assigned for unilateral concentric contraction of the visual field of 15 degrees to 6 degrees, bilateral to 60 concentric contraction of the visual field of 60 degrees to 46 degrees; or loss of the nasal half of the visual field bilaterally. 38 C.F.R. § 4.84a, Diagnostic Code 6080 (2007).

While such regulation does not specify that visual field tests be recorded in a Goldmann Chart, it does require precise specifications that directly correspond to the Goldmann Chart. To be adequate for VA adjudication purposes the visual field test must use a standard perimeter and three millimeter m white test object, and test at least 16 meridians that were 22.5 degrees apart. See 38 C.F.R. 4.76. Based on the specifications required, the example provided in the Rating Criteria, and the adoption of the Goldmann Chart in subsequent versions of the Rating Schedule, testing performed in this fashion is required for adjudication purposes.

In this case, the Veteran’s private eye treatment records indicate that he did have a visual field impairment. At a July 2005 eye examination, the Veteran had blind spots in the lower half of his left eye and in all quadrants of his right eye. In July 2006, he was found to have some visual field abnormality in both eyes, primarily in the right. In May 2009, field analysis also showed impairment in the visual field, and a June 2009 eye evaluation showed significant visual impairment in one eye.

The eye evaluations of record are not, however, adequate for rating purposes under the criteria for rating based on impairment of field of vision. Cf. 38 C.F.R. § 4.84a, Diagnostic Code 6080 (2007). Field of vision impairment testing was not performed at the May 2009 VA examination, and in the absence of adequate Goldmann Chart data, the Board is unable to consider whether a higher rating could have been assigned on the basis of impairment of the visual field.

Based on the available evidence of record the Board finds that the preponderance of the evidence is against the assignment of an initial rating higher than 10 percent. The Board has considered the benefit of the doubt doctrine, but the preponderance of the evidence is against finding for any rating higher than 10 percent. 38 U.S.C. § 5107(b); See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Hearing Loss

The Veteran asserted that his bilateral hearing loss warranted a compensable initial rating. The appellant stated at a February 2016 Board hearing that the Veteran’s hearing loss required him to wear hearing aids and to speak loudly.

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). 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 puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, 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, Diagnostic Code 6100.

An exceptional pattern of hearing impairment occurs when the puretone 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 puretone 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).

At a January 2006 audiology consultation, the Veteran showed mild bilateral sensorineural hearing loss. He had a right ear word recognition score of 92 percent at 55 decibels, and a left ear word recognition score of 80 percent at 55 decibels, but no information was given regarding the word list used. The Veteran reported that he did “pretty well” in most situations, but had occasional difficulty if he was a distance from the speaker or not facing the speaker, and said that he needed louder volume on the television.

At a September 2006 VA examination, puretone threshold testing showed the following results, in decibels:

HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
40
40
45
40
41
LEFT
40
40
40
50
43

Speech discrimination scores were 100 percent in the right ear, and 96 percent in the left ear. Applying the findings from the September 2006 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in both ears. Where hearing loss is at Level I in both ears, a noncompensable rating is assigned. 38 C.F.R. § 4.85.

At a May 2009 VA examination, the Veteran reported that he required hearing aids and had difficulty understanding or hearing clearly in all situations. Puretone threshold testing showed the following results, in decibels:

HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
45
45
40
35
41
LEFT
40
45
40
50
44

Speech discrimination scores were 88 percent in the right ear, and 76 percent in the left ear. Applying the findings from the May 2009 examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear and Level III in the left ear. Where hearing loss is at Level II and Level III, a noncompensable rating is assigned. Id.

The records also includes a January 2007 private audiology examination, which showed the following puretone thresholds:

HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
55
45
50
45
49
LEFT
55
50
45
50
50

While this examination showed speech discrimination scores of 80 percent in each ear, there was no indication of the type of word list used for this testing, and the test results are not eligible for rating purposes under 38 C.F.R. § 4.85. Simply put, there is no evidence that this private examiner still has records from 2007 which would identify the word list used.

After reviewing all of the evidence, the Board finds that a compensable initial rating was not warranted. The most severe manifestation of hearing loss was found at the May 2009 VA examination, at which Level II and Level III hearing loss was found, which does not allow for a compensable rating. The appellant has not submitted any additional evaluations or other evidence that shows that a higher rating was warranted at any time during the appeal or indicated that such evidence exists. In the absence of clinical evidence showing that a compensable rating was warranted, the claim must be denied.

The Board has taken into consideration the Veteran’s complaints regarding the impact of hearing loss on his daily life, but as noted above, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann. The functional effects of hearing loss on his daily life activities were discussed by the appellant at the Board hearing and by the Veteran at the May 2009 VA examination. See 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Veteran reported having difficulty hearing conversation and needing hearing aids, which are reflective of the types of functional difficulty that would be expected to be caused by his recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss.). Accordingly, the Board finds the VA examinations were sufficiently in compliance with the provisions of VA regulations, and they are afforded great probative value in determining the Veteran’s level of hearing impairment.

The Board notes that while the Veteran did report occasional dizziness, he attributed this dizziness to being a symptom of his diabetes mellitus, and there is no medical evidence indicating that dizziness was a symptom of his bilateral hearing loss. A January 2009 audiological assessment noted complaints of dizziness, but a vestibular assessment was essentially normal, indicating no central or vestibular involvement. It was also noted that his dizziness could be a side-effect of medications.

The most probative medical evidence as to the nature of the Veteran’s hearing loss are the audiometric findings, and those discussed above reveal that the Veteran’s hearing loss did not warrant a compensable initial rating. In reaching this conclusion, the Board has again considered the applicability of the benefit of the doubt doctrine. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49.

Lastly, the question of entitlement to referral for consideration of an extraschedular rating is neither an issue argued by the claimant nor reasonably raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities. Yancy v. McDonald, 27 Vet. App. 484, 494 (2016).

Diabetes Mellitus

The Veteran asserted that he had a military mission in 1968 which required him to travel to the mainland of Vietnam, and that he was therefore entitled to the presumption of herbicide exposure.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

A veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, 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. 38 C.F.R. § 3.307(a). The law establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents even though there is no record of such disease in service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Diseases associated with such exposure include diabetes mellitus. 38 C.F.R. § 3.309(e).

The Veteran submitted written statements describing how in 1968, he was sent to the mainland of Vietnam for several weeks for a mission that required him to sleep in the jungle and wait for fellow soldiers to bring them back to the ship. The appellant testified at the February 2016 that she remembered the Veteran being sent to Vietnam and that he had sent her letters at this time. While there is no evidence within the Veteran’s service personnel records verifying any mission to the mainland, the Veteran’s statements are plausibly consistent with his being stationed on the U.S.S. Southerland, which was stationed off the coast of Vietnam at this time. The Veteran’s assertions have also been supported by several lay statements he submitted from former Navy colleagues. G.C. submitted a statement describing how the Veteran had been in country for a short period, and that this experience really physically drained him. R.B. wrote that he and the Veteran had both served in Vietnam, although doing different jobs there.

The evidence available to the undersigned does not provide a basis to doubt the credibility of the Veteran or the appellant. What the Veteran described is not totally outside range of possibility during war, and the Board accepts that it is at least plausible that the Veteran travelled to Vietnam for several weeks, as he reported and as his colleagues have corroborated. Accordingly, resolving reasonable doubt in the Veteran’s favor, he is presumed to have been exposed to herbicide agents while serving on the land mass of the Republic of Vietnam. 38 C.F.R. § 3.307(a).

The Veteran’s treatment records show that he was diagnosed with diabetes mellitus. As the Veteran is presumed to have been exposed to herbicides in service, and as diabetes mellitus is a disease that has been shown to be associated with exposure to herbicide agents, it is presumed that this disorder was incurred in service even without evidence of that disease during service. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). As such, entitlement to service connection diabetes mellitus, as secondary to herbicide exposure, is warranted.

The benefit sought on appeal is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding … benefits.”).

Posttraumatic stress disorder

In a May 2009 statement, the Veteran wrote that while in the service he had problems with anger, blaming others, frustration, bad dreams, flashbacks, and sleep disturbance. He wrote that he had dreams of a shipmate who was electrocuted. In September 2009, the Veteran wrote that he sometimes woke up with a feeling that insects were crawling on him, and that he was easily startled and had intrusive thoughts following some triggers, like planes flying overhead. He also wrote that while in Vietnam he was paranoid and felt that he might die, and that even after he got back to his ship, he “lost it,” and was unable to process the frightening experiences he had.

The appellant testified in February 2016 that the Veteran had symptoms of moodiness and frustration. She stated that he told her that he had heard voices of animals and saw dead people while in Vietnam, and that he saw someone electrocuted on his ship.

Service connection for posttraumatic stress disorder requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptomatology and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. If VA determines either that a veteran did not engage in combat with the enemy, the record must contain credible supporting evidence that corroborates the veteran’s statements. Moreau v. Brown, 9 Vet. App. 389, 396 (1996).

If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3).

At a December 2009 VA psychiatric evaluation the Veteran reported having problems with anger, disturbing memories, avoidance thinking, feeling emotionally distanced, irritability, and difficulty concentrating. He reported having nightmares which were sometimes connected to the military. He discussed being frightened when he was sent to Vietnam and once witnessing an accidental electrocution death while on his ship, which had become a recurring memory for him. He was diagnosed with posttraumatic stress disorder by the examining clinical nurse specialist, later co-signed by a psychologist. The Veteran continued to have psychiatric counseling with a psychiatrist during 2010.

In this case, while the Veteran did not assert that he engaged with combat with the enemy, he nonetheless reported having general fears of hostile military activity while he was in Vietnam, and this stressor was found by a VA psychologist to be adequate to support a diagnosis of posttraumatic stress disorder. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (A posttraumatic stress disorder diagnosis made by a mental health professional may be presumed to encompass both adequate symptomatology and a sufficient stressor.) The Veteran also asserted seeing a fellow electrician electrocuted on his ship, and that this caused him to have a fear of dying himself and that he had recurring thoughts and nightmares about this incident. The Veteran’s lay statements are consistent with the circumstances of his service, as he was an electrician on a ship for many years, and there is no evidence that contradicts this assertion or renders it less than fully credible.

The Board therefore resolves reasonable doubt and finds that the evidence shows that the Veteran did have posttraumatic stress disorder which was related both to a specific incident in his military service and to his fear of hostile military or terrorist activity. There is no evidence of record contrary to the findings of the VA examiner’s opinion or the Veteran’s assertions. As such, entitlement to service connection for posttraumatic stress disorder is warranted. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ . . ., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding . . . benefits.”)

Back Disorder

The appellant also contends that the Veteran had a back disorder that was incurred during his active duty service. The Veteran had submitted written statements describing how he had back pain ever since he was stationed in Vietnam for three weeks and was required to sleep on the ground on rocky terrain. The Veteran also wrote that he started having back and shoulder pain after moving heavy equipment in 1961 and that he believed strenuous labor in service led to muscle strain and chronic back problems. The appellant stated in February 2016 that she remembered the Veteran having difficulty walking when he came home for a visit after being in Vietnam in 1968.

The Veteran’s VA and private treatment records showed that since at least 2000, he was treated for low back pain. In August 2000, he reported low back pain for the prior week. Notably, he denied a past history of previous back pain. It was diagnosed as a likely strain. In October 2000, he was treated for lower back pain for the past four months, and in December 2000, he reported a persistent dull ache in the lower back. He was diagnosed with lumbar discopathy and lower back pain. In February 2001, he reported that his back pain had resolved.

A January 2005 lumbar MRI showed a shallow disc bulge at L2-3 and patent central spinal canal and neural foramina at L3-4. He was diagnosed with scattered lumbar spondylosis. The Veteran was later diagnosed with lumbar radiculopathy, meralgia paresthetica, and spinal stenosis.

There is, however, absolutely no probative, medical evidence linking any lumbar disorder to his military service. A VA medical examination and opinion was not obtained prior to the Veteran’s death, and no medical opinions indicating any relationship between any back disorder and his military service are of record.

There is also no medical evidence that the Veteran incurred any actual injury to his back during service. While the Veteran wrote that he had back pain after moving heavy equipment in 1961 and after sleeping on the ground in Vietnam in 1968, there is no indication in his service treatment records that this resulted in any chronic back disorder. The Veteran’s extensive service treatment records do not show any complaints or treatment for back pain or a back disorder, and his August 1974 separation examination found the spine to be normal. There is no medical evidence indicating that any chronic back disorder was incurred during service, and no medical opinions linking a current back disorder to any event or injury in the Veteran’s service.

The only evidence linking the Veteran’s back disorder to his service is contained in the lay statements of the Veteran and the appellant. A layperson is competent to report observable symptomatology which comes to him via his senses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Lay testimony on the etiology of lumbar spondylosis is not competent in the present case, because neither the Veteran nor the appellant were competent to opine of matters of medical etiology. Further, any assertion that the Veteran had a chronic back injury in service that continued from the time of service to the present is contradicted by the medical evidence of record, including the 1974 separation examination which found the Veteran’s spine to be normal, and his August 2000 treatment for back pain, at which he denied any prior history of back problems. Any lay statements regarding an in-service injury or chronicity of symptomatology from the time of service to the present are therefore found to be less probative than the medical evidence of record.

There is no other evidence indicating that a relationship exists between the Veteran’s back disorder and his military service. The absence of this evidence is fatal to the claim. The preponderance of the probative and competent evidence weighs against entitlement to service connection for a back disorder, and the claim is denied. The Board has again considered the doctrine of reasonable doubt; but the preponderance of the evidence is against the claim, and it is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49.

Bilateral Upper Extremity Orthopedic Disorder

The appellant contends that the Veteran had a bilateral upper extremity orthopedic disorder, to include elbow and shoulder disorders. The Veteran submitted written statements describing how he had severe shoulder pain since 1974. He also wrote that he had to extensively use his arm, back, and hand muscles in service, which caused joint strain and led to later chronic problems. He wrote that while in service between 1961 and 1963, he had to move heavy gyro equipment, and started to feel tingling pain in his shoulders, arms, and back.

The Board notes that only the question of entitlement to service connection for a bilateral upper extremity orthopedic disorder is being addressed at this time. The Veteran also claimed entitlement to service connection for a bilateral upper extremity neurological disorder, which indicates could be secondary to his now service-connected diabetes mellitus. This issue is addressed in the remand below.

Private treatment records do show that the Veteran had current diagnoses relating to the right and left shoulder joints.

In December 1977, the Veteran complained of right shoulder tenderness. He was diagnosed with right shoulder tendonitis/bursitis. In July 1983, the Veteran reported neck aching and numbness radiating into his left shoulder. He was diagnosed with a left shoulder muscle strain.

In December 1997, a right shoulder X-ray showed slight degenerative joint change at the acromioclavicular joint with mild sclerosis.

In January 2003, he reported chronic left shoulder pain, and was diagnosed with left shoulder impingement and tendonitis. June 2003 imaging of the left shoulder showed minimal spurring about the glenoid. He was diagnosed with left rotator cuff impingement.

There is no medical evidence, however, indicating that the Veteran incurred any injury to the shoulders or upper extremities in service, or that any right or left upper extremity orthopedic disorder was related to his military service. The Veteran’s service treatment records do not show any complaints or treatment related to either the right or left shoulder, elbow, or either upper extremity. The Veteran’s August 1974 separation examination found the upper extremities to be normal.

While the Veteran was treated for right shoulder bursitis in 1977, this was three years after his separation from service, and there is no indication that it was the result of any incident or injury during military service.

The Board acknowledges the Veteran’s assertions that he felt pain in his shoulders and arms during service after he would lift heavy objects or use them extensively. While the Veteran is competent to report feeling pain at that time, this does not establish that he incurred any chronic or permanent injury at that time, or that the Veteran’s later shoulder and arm symptoms were related to those in-service events. As a lay person, his statements do not provide competent medical evidence sufficient to establish a nexus between a current disability and service.
See Jandreau, 492 F.3d 1372. The Veteran’s upper extremities were found to be normal upon separation from service, and there is no other medical evidence indicating that any chronic upper extremity injury was incurred or that any later diagnosis was related to service.

There is no probative medical evidence indicating that a relationship exists between any upper extremity disability and the Veteran’s military service. The absence of probative evidence is fatal to the claim. The preponderance of the probative and competent evidence weighs against the claim of entitlement to service connection for a bilateral upper extremity orthopedic disorder, and the claim is denied. The Board has again considered the doctrine of reasonable doubt; the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49.

ORDER

Entitlement to an initial rating for glaucoma in excess of 10 percent is denied.

Entitlement to an initial compensable rating for bilateral hearing loss is denied.

Entitlement to service connection for diabetes mellitus is granted.

Entitlement to service connection for posttraumatic stress disorder is granted.

Entitlement to service connection for a back disorder is denied.

Entitlement to service connection for a bilateral upper extremity orthopedic disorder is denied.

REMAND

Aortic Valvular Disease

The Veteran contended that his aortic valvular disease warranted an initial rating higher than 30 percent. The appellant testified at a February 2016 Board hearing that the Veteran would get tired very easily, having shortness of breath and requiring a walker and wheelchair. She stated that he needed help to get up and use the bathroom, greatly decreasing his quality of life during his last few years.

The Veteran’s private and VA treatment records show continuous follow up evaluations for his aortic valvular disease, which resulted in decreased oxygen flow and energy. In October 2004, the Veteran’s left ventricle was not enlarged, and the ejection fraction was approximately 70 percent. At a February 2007 evaluation, he was found to have normal ejection fraction and normal sinus rhythm.

A February 2007 stress test found a metabolic equivalent level of 1. It was noted that this value represented 96 percent of the maximal, age-predicted heart rate. The stress test was stopped due to hypertension. The medical report of record does not include a “Conclusions” paragraph, but instead states “LISTEN TO DICTATION.”

In November 2009, the Veteran attended a VA examination. He reported undergoing an aortic valve replacement in 1988 or 1989, and that he did not have a history of myocardial infarct. He reported walking 30 minutes daily and working in the garden. He denied any current congestive heart failure or paroxysmal dyspnea. Physical examination found regular heart rate and rhythm. His estimated metabolic equivalents was 7.

In a December 2010 presurgical workup the Veteran was found to have a small penetrating ulcer of the thoracic aorta near the origin of great vessels. There was some bleeding in the bronchial tree, which put the Veteran at great risk for bleeding during heparinization and cardiopulmonary bypass. In May 2011, he reported having burning chest pain, including when he was lifting items around the house. He reported expectorating blood daily. The Veteran was admitted for a myocardial infarction, and was discharged in June 2011. After discharge, the Veteran remained active, but was readmitted later that month. He reported severe coughing and shortage of breath. He was found to have pleural effusions consistent with moderate left ventricular failure.

The death summary following the Veteran’s final illness stated that he had symptomatic coronary disease and recent myocardial infarction, requiring two separate stent placements in June 2011. He had increasing dyspnea with minimal exertion and aortic insufficiency. He was admitted to the hospital and referred for sternotomy and aortic valve replacement. Unfortunately, the surgery was not successful, and in August 2011, the Veteran passed away, due to acute respiratory failure, respiratory distress syndrome, prosthetic aortic insufficiency, and coronary artery disease.

The Board finds that the evidence of record is currently incomplete regarding the Veteran’s substantial treatment for his heart disorder during the final years of his life. The February 2007 stress test may indicate significant worsening of his heart disorder, but the record is incomplete, and should be again remanded in order to attempt to obtain the dictation that accompanied this report.

The appellant testified at the February 2016 Board hearing that the Veteran received treatment for his heart at the Scripps Memorial Hospital La Jolla in the years prior to his death, but these records have not been obtained. She should be afforded another opportunity to provide authorization for these records prior to further adjudication.

Once all records have been obtained, the Board requests that a medical opinion be obtained from a cardiologist which addresses the puzzling disparity between the finding of a metabolic equivalent workload level of 1 in February 2007 and the finding of a metabolic equivalents workload level of 7 at the November 2009 VA examination.

Lung Disorder

The appellant contends that the Veteran had a lung disorder which was incurred during his active duty service. She stated at the February 2016 hearing that the Veteran started having breathing and lung problems in 1957.

The Veteran submitted written statements indicating that he believes his “rough breathing” and congestion began during his active duty service eventually developed into chronic lung disease. He also submitted a letter stating that he was exposed to asbestos in service, and that this led to the development of emphysema, chronic obstructive pulmonary disease and asbestosis.

The service treatment records show that he was treated for a cough and congestion in November 1957, March 1960, April 1962, August 1962, October 1969, July 1973, and July 1974. The Veteran’s August 1974 separation examination notes several right lung calcifications which represented a residual of healed granulomatous disease. As noted below, postservice the records show that the Veteran suffered from lung problems. Furthermore, the Veteran’s private and VA treatment records indicate that his breathing disorders may also have been linked to his service-connected aortic valvular disease. Hence, the issue should be remanded in order to obtain a medical opinion addressing the etiology of any lung disorder diagnosed prior to the Veteran’s death. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In February 1987, the Veteran reported having shortness of breath on exertion. Physical examination found aortic valvular disease with predominantly stenosis and some aortic regurgitation. The examiner noted that the Veteran’s symptomatology included shortness of breath, which could be related to anemia. In December 1988, the Veteran reported that he believed his aortic abnormality was causing shortness of breath and reported difficulty exercising.

In October 2006, he was found to have hemoptysis, reduced spirometry, shortness of breath, and dyspnea. An October 2008 chest X-ray found a small linear density at the left lung base most likely reflecting scarring or atelectasis and slightly low lung volumes.

A January 2010 bronchoscopy found fragments of respiratory mucosa. He was diagnosed with hemoptysis and chronic obstructive pulmonary disease. In March 2010, the Veteran was diagnosed with hemoptysis, noting asbestos exposure according to the patient.

In November 2010, the Veteran was found to have mild, chronic hemoptysis and mild emphysema, which was believed to be secondary to pulmonary arteriovenous malformations. In May 2011, he was diagnosed with paraseptal emphysema.

The Board therefore also requests that a medical opinion be obtained to address the Veteran’s complex disability picture and state whether any lung disability was caused or aggravated by his service-connected aortic valvular disease.

Hypertension

The Veteran also claimed entitlement to hypertension both directly due to service and as secondary to aortic valvular disease.

In September 2009, the Veteran wrote that he had been found to have hypertension while he was still in service. In March 2000, a physician noted that in conjunction with the Veteran’s diabetes mellitus, his blood pressure was not optionally controlled.

This issue is therefore remanded in order to obtain a medical opinion addressing the likely etiology of any hypertension during the Veteran’s lifetime.

Bilateral Upper Extremity Neurological Disorder

The Veteran contended that he had neurological problems that were secondary to his diabetes mellitus.

The Veteran’s private treatment records show complaints of pain and numbness in his hands and fingers since the 1990s. In September 1991, the Veteran reported hand pain. In April 1995, the Veteran reported difficulty straightening his left third finger. In June 2000, he was treated for burning pain in the hands.

In November 2005, the Veteran was diagnosed with left elbow ulnar neuropathy, and he reported constant numbness in his thumb. He had also been diagnosed with left carpal tunnel syndrome. In September 2005, he reported finger numbness and was diagnosed with diabetic neuropathy. A December 2005 follow up for diabetes noted ulnar neuropathy. In October 2006, he was treated for paresthesias in his left hand fingers, and he underwent a left carpal tunnel release. In June 2007, the Veteran was diagnosed with peripheral neuropathy.

As service connection for diabetes mellitus has been granted, this issue is remanded in order to obtain a medical opinion addressing the nature and etiology of any upper extremity neurological disorder, to include whether it was caused or aggravated by diabetes mellitus.

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Send to the appellant and her representative a letter requesting that she provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain the private treatment records pertaining to the Veteran’s treatment for heart disease. These records should specifically include the a records release to secure the accompanying dictation for the February 13, 2007 stress test performed in San Diego, California through the Veteran’s Kaiser medical care.

The appellant should also be requested to authorize VA to obtain all medical records from the Scripps Memorial Hospital in La Jolla, California, prior to the Veteran’s death in August 2011.

2. Thereafter obtain a medical opinion from a cardiologist to address the nature and severity of the Veteran’s aortic valvular disease. The VA examiner should review the claims file, and the report should reflect consideration of the Veteran’s documented medical history and assertions.

The examiner should then address whether, for the period from November 2005 until the Veteran’s myocardial infarction in May 2011, he had the following symptomatology:

a) any episodes of acute congestive heart failure;

b) evidence that a workload of less than 5 metabolic equivalents that resulted in dyspnea, fatigue, angina, dizziness, or syncope;

c) evidence that a workload of less than 3 metabolic equivalents that resulted in dyspnea, fatigue, angina, dizziness, or syncope;

d) evidence of a left ventricular ejection with an ejection fraction of less than 50 percent; or

e) evidence of a left ventricular ejection with an ejection fraction of less than 30 percent.

The cardiologist is to specifically address the disparity between the finding of a metabolic equivalent workload level of 1 at the February 2007 stress test and the finding of metabolic equivalent workload level of 7 at the November 2009 VA examination. The examiner is to state whether the Veteran’s aortic valvular disease actually improved in functioning by 2009, or whether the totality of the medical evidence indicates that one of these medical reports does not accurately reflect the severity of the Veteran’s condition at that time.

If the examiner cannot provide any requested opinion, he/she must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered.

3. The cardiologist must also provide a medical opinion addressing the nature and etiology of the Veteran’s hypertension. The cardiologist should review the VBMS and Virtual VA files, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. The cardiologist should then address:

a) Is it at least as likely as not that hypertension was caused or aggravated by any event during the Veteran’s military service?

b) Is it at least as likely as not that hypertension was caused or aggravated (worsened beyond the natural progression) by the Veteran’s service-connected aortic valvular disease and/or his diabetes mellitus?

If the cardiologist cannot provide any requested opinion, he/she must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered.

4. Obtain a medical opinion from a pulmonologist to address the nature and etiology of any lung or pulmonary disorder. The pulmonologist should review the VBMS and Virtual VA files, and any report should reflect consideration of the Veteran’s documented medical history and assertions. The pulmonologist should then address the following:

a) What were the Veteran’s lung/pulmonary diagnoses during the period from 2005 until his death in 2011?

b) For each respiratory diagnosis address whether it was at least as likely as not that any lung disorder was caused or aggravated by any event during the Veteran’s military service, including his presumed exposure to herbicide agents during service in the Republic of Vietnam?

c) For each respiratory diagnosis address whether is it at least as likely as not that any lung disorder was caused or aggravated (worsened beyond the natural progression) by the Veteran’s service-connected aortic valvular disease? The examiner is asked to specifically address the Veteran’s diagnosis of hemoptysis and the medical records indicating that anemia, arteriovenous malformations, and ulcer of the thoracic aorta may have affected the Veteran’s breathing and caused bleeding in the lungs.

If the examiner cannot provide any requested opinion, he/she must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered.

5. Obtain a medical opinion from a neurologist to address the nature and etiology of any upper extremity neurological disorder. The neurologist should review the claims file, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions.

a) What were the Veteran’s diagnoses pertaining to any upper extremity neurological disorder during the period from 2005 until his death in 2011?

b) For each diagnosed upper extremity neurological disorder address whether it is at least as likely as not that the disorder was caused or aggravated by any event during the Veteran’s military service, including his presumed exposure to herbicide agents during service in the Republic of Vietnam?

c) For all diagnoses found, is it at least as likely as not that any disorder was caused or aggravated (worsened beyond the natural progression) by the Veteran’s service-connected diabetes mellitus? The examiner is asked to specifically address the Veteran’s diagnosis of peripheral neuropathy, which a treating physician had indicated was related to his diabetes mellitus.

If the examiner cannot provide any requested opinion, he/she must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered.

6. Then after ensuring that VA’s duty to assist has been fully completed readjudicate the issues. If any benefit sought is not granted, the appellant and her representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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