Citation Nr: 1122580	
Decision Date: 06/10/11    Archive Date: 06/20/11

DOCKET NO.  10-21 055	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Newark, New Jersey


THE ISSUES

1.  Whether new and material evidence to reopen a claim for service connection for posttraumatic stress disorder (PTSD) has been received.

2.  Entitlement to service connection for PTSD.

3.  Entitlement to service connection for bilateral hearing loss.


ATTORNEY FOR THE BOARD

Andrew Mack



INTRODUCTION

The Veteran served on active duty from December 1964 to October 1967.

A claim for service connection for PTSD was previously denied by the RO in St. Petersburg, Florida, in October 2006.  Although notified of the denial, the Veteran did not appeal.

This appeal to the Board of Veterans' Appeals (Board) arose from a January 2009 rating decision in which the RO in Newark, New Jersey, inter alia, declined to reopen the Veteran's claim for service connection for PTSD and denied service connection for bilateral hearing loss.  In April 2009, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in April 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2010.

Regarding characterization of the appeal, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection for PTSD.  That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  As the Board must first decide whether new and material evidence to reopen the claim has been received-and, in view of the Board's favorable decision on the request to reopen-the Board has characterized that portion of the appeal involving the Veteran's claim for service connection for PTSD as encompassing the first two matters set forth on the title page.  

The Board also notes that additional evidence pertinent to the Veteran's claim for PTSD-though not to his claim for bilateral hearing loss-was associated with the claims file subsequent to the April 2010 SOC, and the RO did not readjudicate the claim for PTSD thereafter.  As is explained below, with respect to the Veteran's PTSD claim, the Board is granting the benefit sought on appeal.  Thus, the Veteran is not prejudiced by acceptance of such evidence for inclusion in the record. 

As a final preliminary matter, the Board notes that, in his February 2006 claim, the Veteran raised the issue of entitlement to compensation for birth defects to his son and daughter due to Agent Orange exposure.  It does not appear that this claim has yet been addressed by the RO.  As such, this matter is not properly before the Board, and is thus referred to the RO for appropriate action.  


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished.  

2.  In an October 2006 rating decision, the RO denied service connection for PTSD; although notified of the denial in an October 2006 letter, the Veteran did not initiate an appeal.  

3.  Evidence associated with the claims file since the October 2006 denial is not cumulative and redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for PTSD.

4.  While there is no listing on the Veteran's DD-Form 214 of any medals reflecting that he engaged in combat with the enemy, he served as a field artillery radar mechanic from June 1966 to October 1967 with the 79th Artillery Detachment in Vietnam, and the record corroborates the Veteran's claimed in-service stressors of experiencing two enemy attacks at Tan Son Nhut Air Base in early December 1966.  

5.  While the two competent medical opinions of record conflict regarding the question of whether the Veteran has a diagnosis of PTSD, both relate a current mental disorder to the Veteran's in-service stressors, and both opinions are of relatively equal probative weight.

6.  Competent and persuasive evidence establishes that the Veteran does not have hearing loss in either ear to an extent recognized as a disability for VA purposes.


CONCLUSIONS OF LAW

1.  The October 2006 rating decision that denied service connection for PTSD is final.  38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).

2.  As evidence pertinent to the claim for service connection for PTSD received since the RO's October 2006 denial is new and material, the criteria for reopening the claim are met.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010).  

3.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD are met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a) (2010).

4.  The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  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, and 5126 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353-23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Specific to requests to reopen, a veteran must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In this appeal, in August 2008 and October 2008 pre-rating letters, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for service connection, including the reopening criteria for the Veteran's PTSD claim, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; these 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.  The January 2009 rating decision reflects the initial adjudication of the claim after issuance of these letters.  Hence, the August 2008 and October 2008 letters-which meet the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement.  

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 and VA treatment records, and the reports of December 2008 and July 2010 VA examinations.  Also of record and considered in connection with the appeal are service personnel and unit records, along with various written statements provided by the Veteran.  The Board also finds that no additional RO action to further develop the record is warranted.

In summary, the duties imposed by the VCAA have been considered and satisfied.  Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of the claims.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of any of the matters on appeal, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Claim to Reopen

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

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f).

As indicated above, the RO denied the Veteran's claim for service connection for PTSD in October 2006.  The evidence of record at the time consisted of service treatment and personnel records, and VA treatment records.  The basis for the RO's October 2006 denial was that the evidence did not show that the Veteran had combat service, a verified stressor, or a confirmed diagnosis of PTSD.

Although notified of the denial in an October 2006 letter, the Veteran did not initiate an appeal with the October 2006 RO decision.  See 38 C.F.R. § 20.200.  The RO's October 2006 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.  

Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

The Veteran sought to reopen his previously denied claim in September 2008.  Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decisionmakers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new.  As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record.  This analysis is undertaken by comparing the newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  Here, the last final denial of the claim is the RO's October 2006 rating decision.  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

Pertinent evidence added to the claims file since October 2006 includes service personnel records showing that the Veteran served at Tan Son Nhut Air Base from June 1966 to October 1967, and unit records indicating that attacks on Tan Son Nhut Air Base occurred in December 1966, which have been claimed by the Veteran as in-service stressors.  Also added to the claims file since October 2006 is an October 2010 VA mental health consult evaluation indicating a diagnosis of service-related PTSD.

The Board finds that the above-described evidence provides a basis for reopening the claim for service connection for PTSD.  At the time of the October 2006 rating decision, the record contained no such evidence to support the occurrence of an in-service stressor, and no diagnosis of PTSD.  The Board finds that the above-described evidence is "new" in that it was not before agency decisionmakers at the time of the October 2006 final denial of the claim for service connection, and is not duplicative or cumulative of evidence previously of record.  Moreover, this evidence is "material" in that it addresses a possible basis for an award of service connection for PTSD.  Hence, this evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection.

Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for PTSD are met.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

III.  Service Connection

A.  PTSD

In addition to the legal authority cited above, the Board notes that the evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a Veteran engaged in "combat with the enemy."  See Gaines v. West, 11 Vet. App. 353, 359 (1998).  Participation in combat, a determination that is to be made on a case-by-case basis, requires that a Veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  See VAOPGCPREC 12-99 (October 18, 1999); Moran v. Principi, 17 Vet. App. 149 (2003).  See also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004).

If, however, the alleged stressor is not combat related, then the Veteran's lay testimony, alone, is not sufficient to establish the occurrence of the alleged stressor.  Instead, the record must contain evidence that corroborates his testimony or statements.  See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau, 9 Vet. App. at 395.  See also Zarycki, 6 Vet. App. at 98; Doran v. Brown, 6 Vet. App. 283, 289-290 (1994).

The Board notes, however, that, on July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of in-service stressors involving "fear of hostile military or terrorist activity."  See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010).  The revisions apply to, among others, claims such as the Veteran's, which were appealed before July 13, 2010, but not yet decided by the Board.

The amendment indicates that 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 PTSD, 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.  See 75 Fed. Reg. 39843 (July 13, 2010).

For purposes of the amendment, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  Id.

In his April 2009 NOD, the Veteran stated that his in-service stressors included attacks on Tan Son Nhut Air Base in early December 1966, where the Veteran was stationed at the time, during which an ammunitions dump 150 yards from his tent exploded.  The Veteran also reported that in June 1967 he was on an army helicopter that was attacked by small arms fire, and that in March 1967 he received small arms fire while traveling alone between base camps, at which time he was detoured by the Army of Vietnam military police from the main roads due to Viet Cong occupation of a village.  The Veteran has also asserted that he is not certain if his in-service experiences resulted in his current sleep disorders, drinking, and temper problems, but was told by a doctor that they may be related. 

The Veteran's service records indicate that he was a field artillery radar mechanic from June 1966 to October 1967 with the 79th Artillery Detachment at Tan Son Nhut Air Base.  A Summary of United States Military Assistance Command Vietnam New Events for 1966, dated in January 1967, indicates that in early December 1966 two enemy attacks occurred at Tan Son Nhut, which involved mortar rounds, armed helicopters, air strikes, counter-mortar fire, and small arms fire, with wounded and killed United States and enemy soldiers.  Thus, while there is no listing on the Veteran's DD-Form 214 of any medals reflecting that he engaged in combat with the enemy, the record reflects that the Veteran served in a combat zone.  

The report of a July 2010 VA PTSD examination indicates that the Veteran reported the stressor of his unit's camp being attacked by enemy mortar fire, including fire that hit an ammunition storage unit approximately 150 yards from his position and blew it up.  After examining the Veteran, the VA psychologist concluded that, although the Veteran admitted having difficulties including persistent sleep problems, irritability, some intrusive thoughts, and exaggerated startle, his current symptoms, though likely related to his military service, did not reach the criterion for PTSD.  The examining psychologist stated that the Veteran's symptoms were mild and the Veteran clearly stated that he had managed well by talking to other veterans when needed, and that his complaints did not interfere with his ability to function at home or on the job, with the exception of sleep disturbance.  The diagnosis was unspecified mental disorder (nonpsychotic).

The Veteran also submitted a VA mental health consult evaluation, dated in October 2010, performed by a VA clinical psychologist.  The report indicates that the Veteran again gave a history of serving in an artillery unit in Vietnam and being under intermittent enemy fire, including two large attacks, where he saw others killed and wounded.  He reported being in constant fear of being attacked.  It was noted that the Veteran had multiple symptoms of PTSD, secondary to these experiences, including distressing memories that bothered him intermittently, nightmares, and avoidance of discussion of Vietnam, except with fellow Vietnam veterans.  The Veteran also was noted to have had multiple arousal symptoms including irritability, anger, insomnia, exaggerated startle response, and hypervigilance.  The VA clinical psychologist noted that these symptoms appeared mild, and that the Veteran's was able to have an active social life and maintain employment, although he had some problems dealing with authority and preferred to have control over what he did.  The examiner stated that the described incidents were adequate to support a diagnosis of PTSD, and that the Veteran's stressors were consistent with the places, types and circumstances of his service.  The diagnosis was PTSD.

Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the record supports the award of service connection for PTSD.

While there is no listing on the Veteran's DD-Form 214 of any medals reflecting that he actually engaged in combat with the enemy, the Summary of United States Military Assistance Command Vietnam New Events for 1966 corroborates the Veteran's claimed in-service stressors of experiencing two enemy attacks while serving at Tan Son Nhut in early December 1966.  Also, the Veteran's stressors in this case, including experiencing enemy attacks at Tan Son Nhut, are related to fear of hostile military activity.  Furthermore, the October 2010 VA clinical psychiatrist has confirmed that the claimed stressors are adequate to support a diagnosis of PTSD and that the Veteran's psychiatric symptoms are related to the claimed stressors, the claimed stressors are consistent with the places, types, and circumstances of the Veteran's service in Vietnam, and there is no clear and convincing evidence to the contrary.  Therefore, the Board finds that there exists credible supporting evidence that the Veteran's claimed in-service stressors occurred. 

The only remaining question is whether the medical evidence of record reflects that the Veteran has a current PTSD disability related to his in-service stressors.  On this question, the two competent medical opinions of record conflict with each other.  

It is the responsibility of the Board to assess the credibility and weight to be given the evidence.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board.  See Guerrieri v.  Brown, 4 Vet. App. 467, 470-71 (1993).   

When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  However, the Board may not reject medical opinions based on its own medical judgment.  Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991).  In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  However, a medical opinion may not be discounted solely because the examiner did not review the claims file.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

After reviewing the examination reports and medical opinions of the July 2010 VA examining psychologist and the October 2010 VA psychologist, the Board finds the opinions to be of relatively equal weight.  Both medical professionals who provided the reports and opinions are VA psychologists, and, while only July 2010 examiner acknowledged review of the claims file, the VA psychologists were given substantially the same history by the Veteran regarding his current symptoms and in-service stressors, and both VA psychologists noted similar findings regarding the Veteran's symptomatology.  Moreover, significantly, both VA psychologists related the Veteran's current psychiatric symptoms to his in-service stressors; the only difference of opinion between the two was whether the Veteran's service-related psychiatric diagnosis is PTSD or another, unspecified mental disorder, given his current symptoms.  Under these circumstances, the Board finds the opinions to be of relatively equal probative weight, and thus finds the opinion of the October 2010 VA psychologist to be at least as persuasive as that of the July 2010 VA examining psychologist.

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

Given the totality of the evidence, and resolving all reasonable doubt in the Veteran's favor regarding both the existence of a current PTSD disability and the occurrence of his claimed in-service stressors, the Board finds that the criteria for service connection for PTSD are met.

B.  Bilateral Hearing Loss

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2010).

Considering the pertinent evidence in light of the above, the Board finds that the claim for service connection for bilateral hearing loss must be denied. 


The Veteran's service treatment records indicate that on audiometric testing in December 1964, prior to induction into service, the pure tone thresholds, in decibels, were as follows:



HERTZ



500
1000
2000
4000
RIGHT
0
-10
-10
-10
LEFT
0
-10
-10
-10

The report of the examination at the time of separation from service in October 1969 contains no audiometric testing results, but indicates that the Veteran reported never having had hearing loss.  There are no further audiometric test results in the service treatment records, and no indication that the Veteran's hearing met the requirements of § 3.385 for hearing loss disability in either ear. 

However, the absence of in-service evidence of a hearing loss disability is not fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The Veteran contends that he has bilateral hearing loss resulting from noise exposure from artillery fire during service.  Service personnel records indicate that the Veteran served as a radar mechanic in an artillery division in Vietnam.  Given the circumstances of the Veteran's service, the Board finds that he likely had noise exposure during his period of service. 

The Board also notes that the Veteran is competent to report symptoms such as diminished hearing.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (competence of lay testimony on matters within personal knowledge, to include symptoms or facts observed).  The Board points out, however, that for purposes of establishing service connection for hearing loss, the provisions of 38 C.F.R. § 3.385 control in establishing current disability.  

Here, the only post-service audiometric testing results of record are reflected in the report of a December 2008 VA audiological evaluation.  At that time, testing revealed that pure tone thresholds, in decibels, were as follows:



HERTZ




500
1000
2000
3000
4000
RIGHT
15
15
10
25
30
LEFT
20
20
25
25
35

Speech audiometry revealed speech recognition ability of 94 percent in each ear.

The above-cited testing results do not establish a current hearing loss disability in either ear as defined by 38 C.F.R. § 3.385, as the auditory thresholds were not 40 decibels or greater at any of the frequencies, the auditory thresholds at the minimum three of the frequencies were not 26 decibels or greater, and the Maryland CNC speech recognition scores were not less than 94 percent.  Moreover, the Veteran has not presented or identified existing audiometric testing results that meet the requirements of that regulation.  As indicated, while the Board has considered the Veteran's assertions, he does not have the appropriate training and expertise to provide the testing results needed to establish current disability within the meaning of 38 C.F.R. § 3.385 on the basis of lay assertions, alone.  See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. § 1110; see also 38 C.F.R. § 3.310.  Thus, where, as here, competent evidence establishes that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In the instant case, the claim for service connection for bilateral hearing loss must be denied, because the first essential criterion for a grant of service connection-evidence of a current disability upon which to predicate a grant of service connection-has not been met.  

For all the foregoing reasons, the Board finds that the claim for service connection for bilateral hearing loss must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence weighs against the claim on the matter of current disability, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.


ORDER

As new and material evidence to reopen the claim for service connection for PTSD has been received, to this limited extent, the appeal is granted.

Service connection for PTSD is granted.

Service connection for bilateral hearing loss is denied.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs