Citation Nr: 1300131	
Decision Date: 01/03/13    Archive Date: 01/11/13

DOCKET NO.  09-10 748	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an initial compensable rating for service-connected bilateral hearing loss.

2.  Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

E. Joyner, Counsel




INTRODUCTION

The Veteran served on active duty from February 1970 to January 1972.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, denied service connection for PTSD and granted service connection for bilateral hearing loss.  A noncompensable rating was assigned, effective July 28, 2005.

The September 2007 rating decision also granted service connection for tinnitus, denied service connection for diabetes mellitus type II, and denied service connection for neuropathy of the upper extremities.  The Board notes that the Veteran filed a timely disagreement with respect to the denial of the claim of entitlement to service connection for diabetes mellitus type II and this issue was addressed in the February 2009 statement of the case.  However, in his March 2009 VA Form-9, the Veteran specifically limited his substantive appeal to the two issues listed on the title page of this decision.  As such, this additional issue has not been perfected for appeal and is not for consideration.

The record reflects that the Veteran has psychiatric diagnoses in addition to PTSD, to include situational depression and adjustment disorder with mixed anxiety.  In Clemons v. Shinseki, 23 Vet. App. 1 (2009), it was 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.  In the November 2012 Appellate Brief Presentation, the Veteran's representative requested that the Board consider the Veteran's diagnosed mental disorder in addition to PTSD.  As such, the Board has recharacterized the issue as entitlement to service connection for an acquired psychiatric disability, to include PTSD.



FINDINGS OF FACT

1.  The competent medical evidence of record demonstrates that the Veteran has not worse than level I hearing acuity on the right and level I hearing acuity on the left.

2.  The Veteran does not meet the diagnostic criteria for a diagnosis of PTSD.

3.  An acquired psychiatric disability other than PTSD was not present during service or within one year of service, and is not otherwise caused by or related to active service.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2012).

2.  An acquired psychiatric disability other than PTSD was not incurred in active service, nor can it be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1131, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

3.  PTSD was not incurred in active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

In addition, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

In this case, the Veteran is challenging the initial disability rating assigned following the grant of service connection for bilateral hearing loss.  As noted above, in Dingess, the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  Thus, because the notice that was provided before service connection for bilateral hearing loss was granted was legally sufficient, VA's duty to notify has been satisfied. 

With respect to the claim for service connection for an acquired psychiatric disability to include PTSD, in VA correspondence to the Veteran in August 2005 and March 2006, VA informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  The March 2006 notice informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date.  Both notice letters were sent prior to the initial adjudication of the claim. 

In addition, the duty to assist the Veteran has been satisfied in this case.  All available relevant evidence pertinent to the issues on appeal is in the claims file including the Veteran's service treatment records, VA treatment records, and the Veteran's statements in support of his claims.  The Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing reflects that he has indicated the existence of any relevant evidence that has not been obtained or requested.  

In addition, the Veteran was afforded a VA examinations with respect to his claims.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the August 2007 VA examination reports are adequate.  The examiners reviewed the claims file, and conducted examinations.  The August 2007 VA PTSD examiner addressed the Veteran's symptoms and complaints and provided a medical opinion with an adequate rationale.  The August 2007 VA audiology examiner provided the medical information addressing the rating criteria in this case.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

Moreover, the Board concludes that the August 2007 VA audiology examination report describes the functional effects of the Veteran's bilateral hearing loss disability in that it describes the Veteran's greatest difficulty hearing.  In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that even if an audiologist's description of the functional effects of the appellant's hearing disability was somehow defective, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  There has been no assertion of any such deficiency.  Consequently, the VA examination is adequate. 

Neither the Veteran nor his representative has alleged that the Veteran's bilateral hearing loss disability has increased in severity since the August 2007 VA examination.  Therefore, a new VA examination is not required.  See 38 C.F.R. § 3.159 (2010); VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination).  The August 2007 VA examination report is thorough and provided findings pertinent to the rating criteria.  Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of additional examinations would be redundant and unnecessary.  See 38 C.F.R. §§ 3.326, 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991).  Therefore, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. 

The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate.  Washington v. Nicolson, 21 Vet. App. 191 (2007).  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. 

LAW AND ANALYSIS

      I.  Increased Initial Rating 

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded).  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Because the present appeal arises from an initial rating decision, which established service connection and assigned the initial disability rating, it is not the present level of disability which is of primary importance; the entire period is to be considered to ensure that consideration is given to the possibility of separate ratings for separate periods of time based on the facts found.  See Fenderson, 12 Vet. App. 119 (1999).

Evaluation of a disability includes consideration of the Veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities.  38 C.F.R. § 4.10.

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 

The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometry test.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the pure tone decibel loss.

The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity.  See 38 C.F.R. § 4.85(e) (2012). 

The provisions of 38 C.F.R. § 4.86(a) provides that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Each ear will be evaluated separately.  The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever result provides the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately. 

Service connection for bilateral hearing loss was granted in a September 2007 rating decision.  A noncompensable evaluation was awarded, effective July 28, 2005.  

The medical evidence of record includes a June 2007 VA audiology consult which notes that the Veteran feels that his left ear seems to be worse than his right.  He reported that his hearing has gradually declined since service.  Examination revealed normal, falling to moderate sensorineural high frequency hearing loss in the right ear and normal, falling to moderately severe sensorineural high frequency hearing loss in the left ear.  Speech reception thresholds were consistent with pure tone testing bilaterally and word recognition scores were good bilaterally.  

The August 2007 VA examination report notes that the Veteran complained of difficulty understanding speech in noise and crowds.  Pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
15
10
60
60
36
LEFT
15
20
60
65
40

On the basis of the numbers shown above, the Veteran's pure tone threshold average for the right ear was recorded as 36 decibels.  His pure tone threshold average for the left ear was recorded as 40 decibels.  His speech recognition ability was 92 percent in both ears using the Maryland CNC speech recognition test.  These scores correlate to auditory acuity level I on the right and level I on the left, under Table VI of 38 C.F.R. § 4.85.  A noncompensable rating is warranted under Diagnostic Code 6100 when the auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85.  

Consideration has also been given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment, but this section is not applicable to the August 2007 examination findings.  Pure tone threshold levels were neither 55 dB or higher at each of the four frequencies, i.e., at 1000, 2000, 3000 and 4000 hertz, nor were they 30 dB or less at 1000 hertz and 70 dB or more at 2000 hertz.  38 C.F.R. § 4.86(a) and (b). 

The Board notes that in Martinak, the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  In the present case, the August 2007 audiologist's report reflects that the Veteran's current symptoms include difficulty understanding speech in noise and in crowds.  There is no indication regarding any additional functional impairment from his bilateral hearing loss.  Such notations indicate that the examiner did elicit information from the Veteran concerning the functional effects of his disability as required by 38 C.F.R. § 4.1, 4.2, 4.10.  See Martinak, 21 Vet. App. 447 (2007).

The Board is aware of the Veteran's complaints regarding the severity of his bilateral hearing loss, which the Board finds are credible.  As a general matter, lay statements are considered to be competent evidence when describing what is observed or experienced concerning an injury or illness.  See Layno v. Brown, 6 Vet. App. 465 (1994).  However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

In conclusion, an initial compensable rating for the Veteran's bilateral hearing loss is not warranted.  The August 2007 VA audiology examination report indicates that the Veteran does not meet the criteria for an initial compensable rating for bilateral hearing loss.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran's bilateral hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1) (2012). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization).

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  As discussed above, there are higher ratings available under the applicable diagnostic code, but the Veteran's bilateral hearing loss disability is not productive of such manifestations.  There is no suggestion in the medical evidence that the rating criteria do not reasonably describe the Veteran's disability level and symptomatology.  There has been no demonstration of an exceptional or unusual disability picture, to include marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards.  Although the Veteran is currently unemployed, such unemployment was noted to be due to being laid off as a result of cut backs and store closures, not because of his hearing loss disability.  As such, it cannot be said that the available schedular evaluation for the Veteran's bilateral hearing loss disability is inadequate.  

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected bilateral hearing loss under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki,  22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not argued, and the record does not otherwise reflect, that his bilateral hearing loss renders him totally unemployable.  Although the Veteran is currently unemployed, such unemployment was noted to be due to being laid off as a result of cut backs and store closures, not because of any service-connected disability.  Moreover, there is no allegation of unemployability.  Accordingly, the Board concludes that a claim for TDIU has not been raised.

II.  Service Connection 

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  

Moreover, where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits.  In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez  v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent."  However, when 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.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons 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).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54. 

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

If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  Otherwise, the law requires verification of a claimed stressor.

The provisions of 38 C.F.R. § 3.304(f)(3) are limited to stressors arising from hostile military or terrorist acts toward the U.S. military committed by individuals or entities, rather than acts of one service member directed at another service member.  Hostile criminal actions, such as the harassment and personal assault stressors alleged by a Veteran are contemplated under the provisions of § 3.304(f)(5), which addresses evidentiary considerations where PTSD is alleged to have resulted from an in-service personal assault.  Acevedo v. Shinseki, No. 10-3402 (U.S. Vet. App. July 9, 2012).

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).

The Veteran claims that he has PTSD as a result of active service in Vietnam.  Specifically, the Veteran alleges that while on guard duty during service in Vietnam, the port came under attack with rocket and mortar fire, resulting in the explosion of a fuel dump.  The first element of a claim for service connection is that there must be evidence of a current disability.  For the reasons noted below, the Board finds that the Veteran does not have PTSD. 

The Veteran underwent a VA examination in August 2007.  The VA examiner considered the Veteran's contention that he has PTSD but found that the Veteran does not meet the DSM-IV criteria for a diagnosis of PTSD.  Specifically, the examiner noted that in terms of PTSD symptoms, the Veteran did not report significant symptoms to warrant a DSM-IV diagnosis of PTSD.  While the Veteran reported some memories with mild distress if exposed to cues that remind him of Vietnam, the memories are not consistent or frequent (the examiner noted that they occur less than weekly).  Moreover, the Veteran reported some avoidance of stimuli associated with Vietnam or combat related themes, but the examiner determined that his hyperarousal symptoms are not frequent or severe.  For example, the examiner noted that the Veteran has occasional sleep impairment but not nightly sleep impairment.  The Veteran was administered the Clinician Administered PTSD Scale and the Mississippi Scale for Combat-Related PTSD.  The examiner found that the psychometric scores were not consistent with a diagnosis of PTSD.  

While some VA mental health records contain diagnoses of PTSD, none of those records reveal a DSM-IV-derived diagnosis of PTSD.  Notably, a November 2005 VA treatment record indicates that a PTSD screen was positive.  A December 2005 VA initial psychiatry assessment acknowledges the Veteran's complaints of nightmares and flashbacks of Vietnam.  The assessment was rule out PTSD and situational depression.  A subsequent December 2005 VA psychiatric progress note reflects the Veteran's complaints of flashbacks, intrusive memories, social avoidance, claustrophobia, and emotional detachment, which have been prevalent since his return from Vietnam.  The authoring psychiatrist assessed the Veteran with PTSD, prolonged, Vietnam related.  However, these VA treatment records do not reference any tests or studies done, nor do they contain any discussion of the DSM-IV PTSD criteria. 

In short, the most competent and comprehensive medical evidence of record indicates that the Veteran does not have PTSD.  As the preponderance of the competent evidence establishes that the first criterion for service connection for PTSD has not been met, service connection for PTSD cannot be established. 

In making the above determination, the Board has considered the Veteran's assertions that he has PTSD.  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, (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.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007).  However, the Veteran as a lay person is not competent to testify that he has a diagnosis of PTSD.  Concerning this, the Board is mindful that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).  However, in this case, the Veteran is not providing statements related to the diagnosis of a simple disorder or about symptomatology but is instead rendering an opinion as to whether he has a diagnosis of PTSD.  Unlike the varicose veins in Barr or dislocated shoulder in Jandreau, PTSD is not a condition capable of lay diagnosis, nor is it the type of condition that can be causally related to military service without medical expertise.  Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372.  In this regard, a diagnosis of PTSD requires medical expertise.  Thus, the Board concludes that, although the Veteran is competent to report symptoms he experienced while in service and after service, his statements as to the diagnosis of any PTSD do not constitute competent evidence.  As a layperson, he is not competent to provide evidence that requires medical knowledge because he lacks the requisite professional medical training, certification and expertise to present opinions regarding such matters.  Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that matters involving special experience or special knowledge require the opinions of witnesses skilled in that particular science, art, or trade).  Therefore, the Veteran's statements regarding a diagnosis of PTSD do not constitute competent medical evidence on which the Board can make a service connection determination. 

With regard to the claim of entitlement to service connection for an acquired psychiatric disability other than PTSD, the Board notes that the service treatment records are negative for complaints, findings, or diagnoses of any psychiatric disability.  The separation examination report notes normal psychiatric evaluation.

The post-service medical evidence reflects that the Veteran was diagnosed with situational depression and rule out PTSD in December 2005.  The December 2005 VA initial psychiatric assessment reflects that the Veteran's psychosocial stressors included the loss of a job, being estranged from young adult children, losses from divorce, limited income, concern for health, looking for a new vocation, and memories of his Vietnam experience.  A subsequent December 2005 VA psychiatric note reflects that the Veteran was diagnosed with adjustment disorder with depressed mood and PTSD.  At the August 2007 VA examination, the Veteran was diagnosed with adjustment disorder with mixed anxiety and depressed mood.  The examiner specifically opined that the Veteran's adjustment disorder with mixed anxiety and depressed mood was not due to his military duties or related trauma exposure.  Instead, the examiner found that the Veteran's unemployment and family stress more likely than not contributed to his reported anxiety and depressed mood.

Therefore, the record does not reflect that a chronic acquired psychiatric disability was present during active service or within one year or the Veteran's discharge therefrom.  Instead, the Veteran's situational depression and adjustment disorder were diagnosed over 30 years after the Veteran was discharged from active service.  He does not allege continuous symptomatology since service, and the competent medical evidence of record suggests that these acquired psychiatric disabilities are more likely than not related to stressors such as unemployment and family stress, and not related to active service.  

While the Veteran may believe that his acquired psychiatric disability other than PTSD is etiologically related to service, the Board finds that the medical evidence of record outweighs his contentions.  In this regard, the Board has considered the Veteran's assertions that he has an acquired psychiatric disability which is caused by or related to active service.  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, (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.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007).  However, the Veteran as a lay person is not competent to testify that he has an acquired psychiatric disability which is etiologically related to active service.  Concerning this, the Board is mindful that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).  However, in this case, the Veteran is not providing statements related to the diagnosis of a simple disorder or about symptomatology but is instead rendering an opinion as to the etiology of his acquired psychiatric disability other than PTSD.  Unlike the varicose veins in Barr or dislocated shoulder in Jandreau, an acquired psychiatric disability is not a condition capable of lay diagnosis, nor is it the type of condition that can be causally related to military service without medical expertise.  Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372.  In this regard, a diagnosis of an acquired psychiatric disability other than PTSD requires medical expertise.  Thus, the Board concludes that, although the Veteran is competent to report symptoms he experienced while in service and after service, his statements as to the etiology of any acquired psychiatric disability other than PTSD do not constitute competent evidence.  As a layperson, he is not competent to provide evidence that requires medical knowledge because he lacks the requisite professional medical training, certification and expertise to present opinions regarding such matters.  Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that matters involving special experience or special knowledge require the opinions of witnesses skilled in that particular science, art, or trade).  Therefore, the Veteran's statements regarding the etiology of his acquired psychiatric disability other than PTSD do not constitute competent medical evidence on which the Board can make a service connection determination. 

In conclusion, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability, to include PTSD, and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

An initial compensable rating for bilateral hearing loss is denied.

Service connection for an acquired psychiatric disability, to include PTSD, is denied.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs