Citation Nr: 1008992 Decision Date: 03/10/10 Archive Date: 03/17/10 DOCKET NO. 07-03 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1968 with service in the Republic of Vietnam from August 1967 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The psychiatric issue on appeal was previously characterized as entitlement to service connection for PTSD. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for service connection for a psychiatric disability encompasses all psychiatric symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Consequently, the Board has re-stated the issue involving the claim for service connection for PTSD to be consistent with the Court's holding in Clemons. FINDINGS OF FACT 1. The Veteran does not have a current acquired psychiatric disorder to include PTSD. 2. A hearing loss disability was noted on the Veteran's examination for entrance into service and competent medical evidence does not establish an increase in severity during active duty service. 3. Tinnitus was not present in service or until many years thereafter and is not etiologically related to a disease or injury in service. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, to include PTSD, was neither incurred in nor aggravated by active duty service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304(f) (2009). 2. A hearing loss disability was neither incurred in nor aggravated by active duty service, nor may its incurrence or aggravation be presumed. 38 U.S.C.A. §§ 1110, 1111, 1112, 1137, 1153; 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.306, 3.385. 3. Tinnitus was neither incurred in nor aggravated by active duty service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). PTSD The Veteran contends that an acquired psychiatric disorder is the result of traumatic experiences during his active duty service in Vietnam. He has reported both combat and non- combat stressors including exposure to rocket attacks while stationed with the 936th Medical Detachment at Tan Son Nhut, and participation in graves registration. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 32 (4th ed.) (1994) (DSM IV)); a link, established by medical evidence, between current symptoms and an in- service stressor; and credible supporting evidence that the claimed in-service stressor occurred (unless the evidence shows that the Veteran engaged in combat and the claimed stressor is related to combat). 38 C.F.R. § 3.304(f) (2009). In this case, the record is completely negative for competent medical evidence diagnosing PTSD or any other acquired psychiatric disorder. In a January 2006 statement, the Veteran reported that he experienced abnormal behavior such as taking cover in response to loud and sudden noises and sitting with his back to a wall when out in public. While the Veteran is competent to report observable symptoms, such as depression and behavioral changes, his lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). With respect to PTSD, 38 C.F.R. § 3.304(f) specifically requires medical evidence diagnosing the condition, therefore, service connection for PTSD is not warranted as there is no competent evidence of the disability being claimed. Regarding all other claimed psychiatric disorders, as with PTSD, there is no competent evidence of such conditions. The Veteran's representative argued in the January 2010 informal hearing presentation that service treatment records contained an August 2006 complaint of depression upon psychiatric evaluation, however, the Veteran's only period of active duty service was from September 1966 to August 1968. Service records are negative for any psychiatric complaints and the Veteran was psychiatrically normal at the August 1968 separation examination. In any event, service connection requires the presence of a current disability, meaning a disability must be shown by competent medical evidence to exist at the time of the award of service connection. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Chelte v. Brown, 10 Vet. App. 268 (1997). To be present as a current disability the condition must be shown at the time of the claim, as opposed to some time in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). Even if the Veteran's service records established a complaint or diagnosis of depression, as there is no competent evidence of a psychiatric disorder since the Veteran's claim was received in July 2005, the requirement of a current disability has not been met Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin 155 F.3d 1353; Degmitech, 104 F.3d 1328; Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim. Bilateral Hearing Loss and Tinnitus The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus as they were incurred due to noise exposure during his active duty service in Vietnam. A veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. 38 U.S.C.A. § 1111. This presumption has been extended to any veteran who served in the active military, naval, or air service after December 31, 1946. 38 U.S.C.A. § 1137. Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b). The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111. The Veteran's August 1966 enlistment examination documents the presence of high-frequency hearing loss. The entrance audiological examination showed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 -5 5 NA 50 LEFT 10 15 10 NA 45 An audiogram performed in conjunction with the Veteran's August 1968 separation examination showed identical puretone thresholds, except the right ear was listed as 5 decibels, rather than as -5 decibels, at 1000 hertz. No complaints or treatment related to the Veteran's ears or hearing were documented during service. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. On the basis of the audiometric test results at 4000 hertz, the Veteran manifested a hearing loss disability at both his enlistment and separation examinations. Moreover, the presumption of soundness is not for application as a preexisting disability was noted on the examination for entrance into service. 38 U.S.C.A. § 1111. The Board must now determine whether the Veteran's preexisting hearing loss was aggravated in service. Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there was an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease; however, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. There is no objective evidence that the Veteran's hearing loss disability underwent an increase in severity during active duty service. Audiometric testing at the August 1966 enlistment examination showed pure tone thresholds that were nearly identical to those recorded on the audiogram performed during the August 1968 separation examination; the pertinent findings at 4000 hertz, showing hearing loss as defined by regulation, were unchanged. The Veteran also made no reports or complaints of hearing loss during service. Furthermore, upon VA examination in April 1970, less than two years after his discharge, the Veteran was specifically found to have no hearing loss. The Veteran reported in a January 2006 statement that his hearing loss worsened during active duty service from 15 percent to 25 percent and that his hearing was not tested at the time of his separation. The credibility of the Veteran's reported history is lessened by the August 1968 separation examination report which clearly shows an audiogram was performed that indicated the same level of hearing loss as that recorded at the enlistment examination. In addition, the record is negative for any post-service complaints of hearing loss until July 2005, more than 35 years after service, when the Veteran's claim for benefits was received. The objective medical records that contain no evidence of aggravation are found to be more probative and credible than the statements of the Veteran clearly made for compensation purposes. The Board must therefore conclude that the weight of the evidence is against a finding that the Veteran's preexisting hearing loss disability was aggravated in service and service connection for this condition is not warranted. With respect to the claim for service connection for tinnitus, the Veteran contends that tinnitus was first incurred during active duty service in Vietnam due to noise exposure from an airfield. Service treatment records are negative for any complaints or treatment for tinnitus and the August 1968 separation examination report, while documenting the presence of a hearing loss disability, does not contain any findings or complaints of tinnitus. The post-service record is also negative for medical evidence of tinnitus, however, the Veteran is competent to report the presence of observable symptomatology such as ringing in his ears and such evidence "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). Similarly, while service records do not document findings of tinnitus, the Veteran is competent to report that he was exposed to noise during service. Resolving all doubt in the Veteran's favor, the Board finds that the first two elements necessary for service connection-a current disability and in-service disability-are established. Although the first two elements of service connection are present in this case, the records does not establish the presence of the third element, that is, a nexus between the current disability and in-service injury. Although the Veteran has reported a continuity of symptoms, stating that his tinnitus began during service and has continued since, the credibility of his reported history is lessened given the lack of any clinical complaints of tinnitus in the almost 40 year period since his separation from service in August 1968, including no complaints of tinnitus made at the time of the April 1970 VA examination, performed less than two years after service. Also, the Veteran's hearing and ears were found to be normal at the April 1970 examination. Additionally, there is no competent evidence of a link between the Veteran's reported tinnitus and his in-service noise exposure. The Board has considered the statements of the Veteran connecting his tinnitus to service, but as a lay person, he is not competent to provide an opinion concerning medical causation. See Espiritu, 2 Vet. App. at 494. The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but finds that his opinion as to the cause of the loss simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376- 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is therefore, denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009) defined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in an August 2005 letter. While he has not received specific information regarding the disability rating and effective date elements of his claims, as the claims are being denied no disability rating or effective date will be assigned. Therefore, the Veteran is not prejudiced by lack of specific notice on these elements. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records the Veteran's service treatment records. With respect to other private or VA treatment, the Veteran has not reported undergoing such treatment, despite the August 2005 VCAA letter notifying him that such evidence was necessary to substantiate his claims. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for getting an examination under the VCAA is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board acknowledges that the Veteran has not been afforded VA examinations or medical opinions in response to his claims but has determined that no such examinations or opinions are required. The medical evidence of record is sufficient to decide the claims, and the record is completely devoid of any competent evidence of an acquired psychiatric disability, including PTSD. With respect to the Veteran's claims for service connection for hearing loss, the competent medical evidence of record establishes that the Veteran's condition pre-existed service and was not aggravated therein. Although the Veteran has stated that his disability was aggravated during service and that tinnitus was present continuously since service, the Board finds that these recent reports are not credible; hence, an examination is not warranted. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for an acquired psychiatric disorder, including PTSD, is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ______________________________________________ Mary Gallagher Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs