Citation Nr: 1326552 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-50 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for drug addiction. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to May 1973. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran was scheduled for a personal hearing before a Decision Review Officer (DRO) at the RO in March 2009 and October 2009, but he failed to report to both hearings without explanation. In his VA Form 9, substantive appeal to the Board, the Veteran requested to appear for a Board hearing at the RO via video conference before a Veterans Law Judge. The hearing was scheduled for July 2012, but the Veteran failed to report to the hearing without explanation. The Veteran's accredited representative subsequently reviewed the claims file and prepared an Appellant's Brief on his behalf. After the case was certified to the Board, a letter was sent to the Veteran in July 2013 regarding his previous request for a Board hearing. Because evidence in the file indicated that the Veteran may be in prison, and thus unable to attend the hearing, he was given the following three options in lieu of presenting oral testimony at a hearing pursuant to 38 C.F.R. § 20.700: (1) submit a written statement for consideration by the Board in its decision; (2) ask that his representative submit an audio cassette for transcription or written argument in the form of a brief which would be considered by the Board in its review of the appeal; or, if applicable, (3) have his representative submit a motion to appear alone and personally present argument to the Board on his behalf if he is unable to appear, but only when "good cause" is shown. The Veteran responded to the July 2013 letter in July 2013 that he was presently incarcerated and he did not have a release date. He requested that his representative either submit written argument in the form of a brief on his behalf, or submit a motion to appear alone and personally present an argument to the Board on his behalf. The Veteran's representative was subsequently contacted, and in a July 2013 memorandum, DAV indicated that the Veteran's brief had already prepared in May 2013, and that the Board may proceed with the appeal. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. Finally, the RO originally adjudicated the Veteran's claim as entitlement to service connection for PTSD in the August 2006 rating decision. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the issue is recharacterized as shown on the first page of this decision and it is acknowledged that such description includes a claim of entitlement to service connection for all currently diagnosed acquired psychiatric disorders. The issue of entitlement to service connection for hepatitis C is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's drug addiction and polysubstance abuse were not incurred in the line of duty because they are due to his own willful misconduct. 2. The Veteran does not have a diagnosis of PTSD that conforms to DSM-IV and that is based on a corroborated stressor. 3. The probative evidence of record indicates that the Veteran does not have a full DSM-IV diagnosis of major depressive disorder or any other psychiatric diagnosis other than polysubstance abuse. 4. The Veteran's hearing loss and tinnitus, if any, were not shown in service or within the first post service year, and the first evidence of possible hearing loss and/or tinnitus comes from the Veteran's reported history that it was incurred in prison many years after discharge from service. CONCLUSIONS OF LAW 1. The Veteran's drug addiction and polysubstance abuse were not incurred in the line of duty; the criteria for entitlement to service connection for drug abuse and/or polysubstance abuse have not been met. 38 U.S.C.A. §§ 105, 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.1; 3.203; 3.301; 3.303 (2012). 2. A psychiatric disorder, including PTSD, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). 3. Hearing loss was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.385 (2012). 4. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies these requirements. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this appeal, the RO provided pre-adjudicatory notice letters to the Veteran in April 2006 and July 2006. The letters notified the Veteran of the evidence necessary to substantiate a claim of service connection, and requested stressor information regarding his PTSD claim. The letters described the specific types of evidence that the Veteran could provide, such as medical records, records and statements from service medical personnel, employment physical examinations, pharmacy prescription records, etc. The letters notified the Veteran that drug addiction was not a disability that was recognized by VA. The Veteran was requested to provide authorization for VA to obtain private treatment records on his behalf. The letter explained what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letters also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service treatment records, personnel records, and private treatment records. Also of record and considered in connection with the appeal are the Veteran's various written statements and a lay statement provided by the Veteran's sister. The Veteran was provided with a VA examination and opinion with regard to his PTSD claim in June 2009 to assess the current nature and likely etiology of any PTSD and any other psychiatric disability. The examination was adequate, as the examiner reviewed the claims file, interviewed the Veteran and reviewed the electronic medical records. The examiner provided a full pre-military history, military history and post-military history of the Veteran, all as reported by the Veteran. The examiner addressed the Veteran's claimed stressors and reported symptoms. The examiner conducted a mental status examination and provided a complete rationale for his opinion that the Veteran did not meet the full criteria for a diagnosis of PTSD based on the reported symptoms, the timing of his symptoms as recorded in the record, medical expertise, and sound medical principles. In addition, the RO inquired as to whether there were any records from the Social Security Administration (SSA) in conjunction with any claim for disability; the RO received a negative response from SSA. The RO also attempted to verify the Veteran's reported stressors by contacting the U.S. Army and Joint Services Records Research Center (JSRRC). JSRRC provided an adequate and timely reply. The Veteran was not examined with regard to his claims of service connection for hearing loss and tinnitus. VA regulations provide that VA will assist a veteran by providing a medical examination or obtaining a medical opinion based upon review of the evidence of record if VA determines that it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, however, neither an examination nor opinion as to the etiology of any hearing loss or tinnitus is necessary to decide the claim. The Veteran has specifically indicated that his claimed hearing loss and tinnitus had their origins while in prison, long after discharge from service. Under 38 U.S.C.A. § 5103A(d)(2) (West 2002), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran has not reported that he had a hearing loss or tinnitus during service, and none is shown. Thus, an examination is not necessary to decide these particular claims. As the Veteran has been afforded an adequate psychiatric examination; and, as all identified records have been obtained, to the extent possible, VA has satisfied its duty to notify and assist the Veteran in this case. The Veteran has been afforded ample opportunity to identify and/or obtain any additional private treatment records to support his claims, and he has indicated that he has no additional evidence to support his claims. Any additional development would be redundant and unnecessary. No additional RO action to further develop the record on the claims is warranted. In several statements in the record, the Veteran maintains that he was not properly assisted with the development of his claims; however, he has not indicated in what way or how his was not properly assisted. He has not indicated that there are outstanding medical records not yet obtained other than old records that have been destroyed, and, as noted above, VA examinations were provided only for those claims that warranted such. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Willful Misconduct - Line of Duty Determination Drug Addiction and Polysubstance Abuse Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the Veteran's own willful misconduct; or, for claims filed after October 31, 1990, not the result of abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. 38 C.F.R. § 3.301(d). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (1999), published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCPREC 2-98 (1998), published at 63 Fed. Reg. 31,263 (February 10, 1998). "Willful misconduct" is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences and must be the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n)(1), (3). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. 38 C.F.R. § 3.301(c)(3). Importantly, a service department finding that injury, disease or death was not due to misconduct will be binding on VA, unless it is patently inconsistent with the facts and the requirements of laws administered by VA. 38 C.F.R. § 3.1 (m), (n). In this case, the service treatment records (STRs) show that the Veteran was treated for opium and heroin use during service. There is no indication that the Veteran had a polysubstance abuse problem prior to service. The STRs reflect that in May 1972, the Veteran was assigned to rehabilitation services for improper use of heroin and marijuana from April 20-30, 1972. The report specifically indicated that the action was not in the line of duty and was due to the Veteran's own misconduct. An April 1972 psychiatric evaluation indicated that the Veteran had been using marijuana, probably laced with either opium or heroin, for the prior five months, smoking six joints two times per week. In a lay statement received in March 2006, the Veteran's sister reported that she first noticed that the Veteran was using drugs upon his return from Vietnam. In the Veteran's statements of record, he reports that his life prior to service was promising and his initial basic training record indicated that his conduct and efficiency was excellent, but everything changed when he went to Vietnam, and his life was never the same. In essence, the Veteran asserts that he used drugs in service to ease PTSD symptoms and to cope with his fear in Vietnam. Regardless of the reasons for the Veteran's drug abuse during service, the fact remains that his drug use is considered not in the line of duty and due to his own willful misconduct, which precludes service connection for any disability resulting therefrom. The service department found the drug use not in the line of duty, and this finding is consistent with facts and the requirements of laws administered by VA, as explicitly noted above. 38 C.F.R. § 3.1 (m), (n). The Board has considered whether the Veteran's diagnosed polysubstance abuse is a symptom of another acquired psychiatric disorder which may be service-connected; however, as noted below, a VA examiner specifically indicated that the Veteran did not meet the DSM-IV diagnosis of PTSD or depressive disorder, but did, in fact, have a DSM-IV stand alone diagnosis of polysubstance abuse. The Veteran also argues that his drug use was isolated and infrequent, and therefore should not be considered willful misconduct; however, the STRs clearly show that the Veteran's drug use was more than isolated and infrequent, as shown by the STRs noting that he was sent to a rehabilitation facility during service after several months of drug use. It is a reasonable assumption that if drug rehabilitation is necessary, then the drug use is more than isolated and infrequent. In summary, the Veteran's in-service drug use is considered due to his willful misconduct and not in the line of duty. As such, the criteria for service connection are not met with respect to the claims of drug addiction and polysubstance abuse. II. Service Connection Psychiatric Disorder to include PTSD The Veteran seeks service connection for PTSD. As noted above, service connection for all diagnosed psychiatric disorders will be considered. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish entitlement to service connection, there must be: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including psychoses, for example, will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year of separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). To summarize, service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Other diseases initially diagnosed after service, including depressive disorder and/or anxiety disorder, also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). If however chronicity (permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity of disease or injury in service to in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent." Savage, 10 Vet. App. at 497. However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent." Id (citations omitted). Evidence relating a current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage v. Gober, 10 Vet. App. at 494-97. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records). The Veteran is competent to report on what he can observe and feel through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (noting that competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102 . In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Establishing service connection for PTSD, as opposed to other acquired psychiatric disorders, requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a) (2012). In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 C.F.R. §§ 3.303(a), 3.304. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in "combat with the enemy." If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(d); see also 38 U.S.C.A. § 1154(b). VA General Counsel has held that "[t]he ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination whether evidence establishes that a veteran engaged in combat with the enemy is resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99; 65 Fed. Reg. 6,256-58 (Feb. 8, 2000). The regulations governing claims for service connection for PTSD were amended during the pendency of this appeal. In July 2010, VA amended 38 C.F.R. § 3.304(f), which concerns establishing entitlement to benefits for post-traumatic stress disorder, to add subsection (f)(3). Section 3.304(f)(3) reduces "the burden of showing the occurrence of an in-service stressor if the claimed stressor is related to fear of hostile military or terrorist activity, and is consistent with the places, types, and circumstances of the veteran's service." Stressor Determinations for Post-traumatic Stress Disorder, 74 Fed.Reg. 42,617, 42,618 (Aug. 24, 2009) (proposed rule); see also Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 669 F.3d 1340, 1344 (Fed.Cir.2012). The addition of subsection (f)(3) "is 'liberalizing' in that it allows, in some circumstances, for a noncombat veteran's lay testimony to establish the occurrence of a claimed stressor so long as a psychiatrist or psychologist confirms that the testimony is sufficient to support a [post-traumatic stress disorder] diagnosis and that symptoms are related to that stressor." Ervin v. Shinseki, 24 Vet. App. 318, 320 (2011) (citing 75 Fed.Reg. 39,843 (July 13, 2010)). The Veteran's STRs are negative for complaints or findings of a psychiatric disability other than, what would later be diagnosed as polysubstance abuse. The Veteran nevertheless maintains that he developed PTSD because he feared for his life while serving in Vietnam because his base camp came under fire. The Joint Service Records Research Center (JSRRC) was able to corroborate the Veteran's reports of his base camp coming under fire during his time in Vietnam. The VA examiner in June 2009, however, opined that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV. The examiner based this finding on several factors as noted below. The examiner acknowledged the Veteran's fear in Vietnam and the reported regular drug use in Vietnam to "numb his anxiety." The examiner also noted the Veteran's reported symptoms of depressed mood, crying spells, feeling hopeless, tense, and irritable, with anger outbursts, and problems sleeping. He reported feeling "worthless" and felt that these symptoms started during service, although he noted having difficulty with irritability for most of his life. The examiner also acknowledged the Veteran's stressor account of experiencing the initial mortar attack, noting that the event was unpredictable and uncontrollable and the Veteran felt afraid during the attack. The examiner also noted, however, that the Veteran denied flashbacks and nightmares about his experiences in Vietnam. He noted only that the Veteran reported occasional dreams about events that could have happened such as killing villagers with his gun. The examiner also noted the Veteran's reports of intrusive memories about Vietnam, but pointed out that those thoughts were frequently focused on regrets about his decisions and lack of information about reactions to combat stressors. The Veteran reported avoidance with regard to talking about his Vietnam experiences, but denied any sense of foreshortened future or problems with remembering aspects of the trauma. The Veteran reported a life-long problem with irritability, but denied panic attacks, manic episodes and psychotic symptoms. The examiner also noted the Veteran's long criminal history and indicated that he was presently incarcerated for selling drugs. Prior to incarceration, the Veteran indicated that he used heroin and marijuana daily, and occasionally injected cocaine for a few years prior to his most recent incarceration. He reported seven heroin overdoses. The examiner conducted a mental status evaluation and the only Axis I diagnosis was polysubstance abuse. The examiner noted that although the Veteran's response to his stressor of receiving mortar fire was that of fear, the Veteran did not report intense fear, helplessness, or horror. Likewise, the examiner found that the Veteran had psychological distress at exposure to internal or external cues that symbolized or resembled an aspect of the traumatic event; however, the Veteran did not report intense psychological distress. According to the examiner, the overall picture was one of an individual who had made a poor adjustment prior to entering military service to the extent that there were behavior control problems and family dysfunction. The Veteran did struggle in adolescence and he did appear to come from a deprived background and exhibit early life disturbances of conduct that would predict his psychiatric and psychosocial adjustment problems as an adult. Prior to entering the military, the Veteran did not appear to suffer PTSD symptoms. The examiner found that the Veteran met the DSM-IV criteria for polysubstance dependence. He exhibited trauma-related symptoms, but he did not meet the full diagnostic criteria for PTSD. He maintained that he had distress at trauma reminders, avoidance of conversations about combat, estrangement from others, restricted range of affect, difficulty sleeping, and hypervigilance. The Veteran maintained that those symptoms have been present since soon after his deployment to Vietnam, however, he did not experience intense fear during his self-identified worse experience in Vietnam and did not experience intense distress to cues about the trauma. Also, in the interview, the examiner noted that no behaviors were noted that were consistent with those reported symptoms and there was no evidence from his medical records about previous difficulties with those symptoms. Other than the lay statement from the Veteran's sister who endorsed changes in the Veteran's personality after returning from Vietnam, the examiner noted that there were no reports from collaterals to confirm his interview responses and observed behaviors. Also, the Veteran did not complete a malingering test to assess the veracity of his self-report. The examiner indicated that it was not possible to separate the effects of the Veteran's trauma symptoms and co-occurring polysubstance dependence on the Veteran's functioning because of the long, severe history of substance abuse. Finally, the examiner found that the Veteran was experiencing some depressive symptoms, but specifically indicated that they were not of a severity or duration sufficient to meet criteria for Major Depressive Disorder. The above examination report is fairly consistent with private treatment records obtained from the Veteran's prison. The medical records specifically showed that in April 2004 and September 2004 there was no indication of current or past mental health treatment or of current mental health complaints. The assessment was no apparent mental health needs at that time. There is no competent evidence to the contrary. In sum, the Veteran has reported various symptoms that could be associated with a diagnosis of PTSD, but the VA examiner specifically indicated that his reported symptoms were inconsistent with some of his responses as to how the reported stressors in service affected him currently. In other words, the examiner listed the Veteran's reported symptoms, but when he probed the Veteran for specific incidents as to when the symptoms occur or under what circumstances they occur, the Veteran's answers did not specifically relate to the reported stressors, but rather, seemed to be connected to events or time periods unrelated to service. Similarly, the examiner found, based on the Veteran's answers to multiple questions, a review of the claims file, a complete recorded history, and a mental status examination, that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD or Major Depressive Disorder. The examiner acknowledged the Veteran's stressors, acknowledged that the Veteran had a severe polysubstance abuse diagnosis, and did endorse some PTSD symptoms, but that alone, is not enough to warrant service connection for PTSD. Here, the weight of the objective medical evidence of record, which includes the June 2009 VA examination and the private prison records from 2004, is against the Veteran's claim. The Veteran's assertions are outweighed by the objective medical findings which indicate no psychiatric disorder other than polysubstance abuse. The Veteran's report of PTSD symptoms are considered, but his multiple prison sentences, drug abuse problems, and quest for monetary gain make his statements less probative than the objective findings in the record because his credibility is in question. Moreover, the diagnosis of PTSD requires medical evidence of a diagnosis in accordance with DSM-IV, and it is not the type of disability that is readily identifiable by the lay person. Certainly the Veteran is competent to report his symptoms, as a description of one's emotional state is something that comes to one through senses; however, the examiner in this case considered the Veteran's reported symptoms, yet still found that he did not meet the full diagnosis of PTSD. In this regard, the examiner also found that the Veteran's reported PTSD symptoms could not be satisfactorily disassociated from his polysubstance abuse, particularly because he had been abusing drugs for such a long period of time. As the most probative evidence of record is the objective medical findings of no diagnosis of a mental disorder in 2004, and no diagnosis of PTSD or depressive disorder in 2009, the preponderance of the evidence is against the claim and service connection for an acquired psychiatric disorder, to include PTSD and Major Depressive Disorder, is not warranted. Under 38 U.S.C.A. § 1110, it is essential that there be a current disability in order to establish service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Absent proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. Hearing Loss and Tinnitus The Veteran asserts that service connection is warranted for hearing loss and tinnitus. For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court noted that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley at 159 .The Court explained that: [W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Id. at 160. The Veteran maintains that he was not given a hearing test in service; however, the STRs clearly show that at least 3 audiograms were performed during the Veteran's active duty service. Audiograms at entry into service and at the time of discharge are within normal limits. The entrance audiogram, from March 1971 was conducted using ASA units. Prior to November 1967, service departments used American Standards Association (ASA) units to record pure tone sensitivity thresholds and VA currently uses the International Standards Organization (ISO)- American National Standards Institute (ANSI) units. Converting to ISO units requires that specific amounts be added to recorded ASA audiological results: 15 at 500 Hz, 10 at 1000 Hz; 10 at 2000 Hz; 10 at 3000 Hz; and 5 at 4000 Hz. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO units. Although the March 1971 examination was provided after 1967, there is a specific notation on the audiogram findings that ASA units were measured. With conversion of the scores from ASA to ISO units for the Veteran's March 1971 entrance evaluation, the pure tone thresholds, in decibels, were under 20 decibels at all frequencies bilaterally except for the left ear at the 500 frequency, which noted 20 decibels. Although this may represent some hearing loss, it is not considered a hearing loss disability for VA purposes, and moreover, it was shown only at entry into service, not during service, or at discharge. Furthermore, the report of a July 1971 audiogram, performed during service, was also within normal limits, showing a designation of 5 decibels in all frequencies bilaterally. The July 1971 audiogram indicated that measurements are shown in ISO units. Finally, hearing loss at discharge was within normal limits, with the audiogram in April 1973 indicating 0 decibels at all tested frequencies, bilaterally, including at 500 Hz and 4000 Hz. There was no complaint or finding of tinnitus during service, and there was no complaint of hearing loss during service. Private treatment records obtained from the Veteran's prison from January 2003 to June 2005 showed that in April 2004, the Veteran first reported tinnitus. In April 2005, the Veteran reported a history of ear infection while in the county jail, and claimed nothing was done about it. The Veteran further reported that his left ear had been ringing ever since, and he claimed to have lost hearing as well. On examination, the left tympanic membrane revealed circumferential opacity resembling thickening or scar formation and it was retracted. The right tympanic membrane was also retracted but there seemed to be a perforation at 5:00 with external canal erythema. There was no cloudy exudate and only minimal cerumen accumulation. The Veteran was to be sent for an audiology consult. There were no other treatment records, private or VA, showing complaints or findings of hearing loss or tinnitus. In the Veteran's Notice of Disagreement with the RO's decision denying his claims, the Veteran merely stated that he was not given proper assistance with regard to these claims. As noted above, however, VA's duty to assist with respect to this claim does not require the RO to afford the Veteran a VA examination because the Veteran has provided no evidence of hearing loss in service and no possibility of nexus between any current hearing loss and tinnitus and military service. The evidence of record clearly shows that the onset of the Veteran's tinnitus, and his first complaints of hearing loss occurred long after discharge form service; and the Veteran specifically pinpointed to post-service ear infections as the cause of any tinnitus and/or hearing loss. Never once does the Veteran assert that any hearing loss or tinnitus had its onset during service or is otherwise related to service. In fact, the Veteran, on his claim form, did not even indicate when his claimed hearing loss and tinnitus began. As such, the only evidence of record of any hearing loss and/or tinnitus is the Veteran's report of current disability. The Veteran is competent to report the onset of hearing loss and tinnitus, as these senses do not require medical expertise to diagnose. However, by the Veteran's own admission, he has clearly indicated that he first noticed the tinnitus and a loss of hearing in conjunction with ear infections that went untreated during his time in a county jail. Because the Veteran has specifically indicated post-service onset of hearing loss and tinnitus in conjunction with a post-service event, and there is no contradictory evidence, service connection for hearing loss and tinnitus is not warranted. ORDER Service connection for drug addiction/polysubstance abuse is denied. Service connection for PTSD and/or Major Depressive Disorder is denied. Service connection for hearing loss is denied. Service connection for tinnitus is denied. REMAND The Veteran seeks service connection for hepatitis C. Despite his heavy drug use, which began during service and which continued long after service, he maintains that he contracted hepatitis C as a result of receiving his immunizations in service from an air jet gun. The RO denied the Veteran's claim, finding that the Veteran's drug use was more likely the cause; and, explained that there was no current scientific evidence that associated the use of air jet guns with the development of hepatitis. Unfortunately, the RO's conclusion is not based on independent medical findings. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding that VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In essence, the RO denied the Veteran's claim based on its own unsubstantiated medical findings because there are no medical findings specific to this Veteran regarding the issue at hand. Even if the RO's finding is correct, VA must still defer to competent medical evidence in order to resolve the issue. The Veteran has a diagnosis of hepatitis C, and asserts that an event in service (immunization by jet engine gun) caused his hepatitis. Thus, the low McLendon threshold is triggered, and a medical opinion is necessary to decide the claim. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering a medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Because the matter is being remanded, the RO should, with appropriate authorization, obtain any private treatment records in support of the Veteran's claim that have not already been obtained. Accordingly, the case is REMANDED for the following actions: 1. After securing proper authorization from the Veteran, obtain and associate with the claims folder any pertinent private treatment records identified by the Veteran that have not already been associated with the claim's file. 2. After completion of #1 above, obtain a medical opinion from a doctor, or other appropriate medical provider, who is capable of determining whether the Veteran has a diagnosis of hepatitis C and if so, who is able to determine the current nature and likely etiology of the hepatitis C infection. The claims file must be made available to the examiner in conjunction with the opinion, records (to include any pertinent medical records contained in Virtual VA) must be reviewed by the examiner in conjunction with the examination. The examiner is asked to express an opinion as to whether the Veteran has hepatitis C, and if so, whether the hepatitis C is at least as likely as not (i.e., 50 percent or greater possibility) related to the Veteran's active service, to include as a result of air jet guns claimed to have been use to distribute immunizations during service; or whether the Veteran's drug use, which began during service, is more likely than not the cause of the hepatitis C infection. The examiner must provide a complete explanation for any stated opinion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Ensure that the above directives have been properly completed. If the examination report(s) are insufficient, it should be returned to the examiner for corrective action. Thereafter, take any other development action deemed warranted and then readjudicate the Veteran's claim. If the action taken is adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs