Citation Nr: 1301169 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-35 130 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial compensable evaluation for service-connected bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an acquired psychiatric disorder, claimed as dyssomnia, with consideration of posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from December 1964 to November 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by which the RO, in pertinent part, denied service connection for tinnitus and for an acquired psychiatric disorder claimed as dyssomnia and granted service connection for bilateral hearing loss. Regarding the latter, the Veteran is contesting the initial zero percent rating assigned. The Veteran requested a hearing before a Veterans Law Judge but withdrew the hearing request in September 2011. Accordingly, the Board will proceed with consideration of the Veteran's claim based on the evidence of record, as he has requested. 38 C.F.R. § 20.704(e) (2012). FINDINGS OF FACT 1. The Veteran's service-connected bilateral hearing loss is manifested by no more than Level I hearing loss in the right ear and Level II hearing loss in the left ear. 2. The evidence is at least in relative equipoise as to whether tinnitus is the proximate result of the service-connected bilateral hearing loss. 3. An acquired psychiatric disorder to include dyssomnia is not shown to be related to the Veteran's active duty service. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for the service-connected bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 3. The criteria for service connection for an acquired psychiatric disorder to dyssomnia are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected bilateral hearing loss has been rated zero percent disabling by the RO under the provisions of Diagnostic Code 6100. 38 C.F.R. § 4.85. Evaluations of defective hearing range from zero to 100 percent. This is based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. The ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral, to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher number. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). On VA examination in January 2008, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 5 30 60 70 41 LEFT 15 45 60 75 49 Speech recognition was 94 percent on the right and 92 percent on the left. The foregoing examination results represent Level I hearing loss in the right ear and Level I hearing loss in the left ear. During a September 2009 VA audiology assessment, the Veteran reported difficulty understanding speech in the presence of background noise without the use of visual cues. He also had trouble with speech that occurred from a distance. The Veteran experienced difficulty understanding telephone conversations with the left ear. His family complained about the volume he used when watching television. The Veteran was counseled regarding the use of communication strategies, and because his level of hearing was not considered socially adequate, hearing aids were recommended. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 5 25 50 65 36 LEFT 10 40 60 70 45 Speech recognition was 94 percent on the right and 92 percent on the left. The foregoing examination results represent Level I hearing loss in the right ear and Level I hearing loss in the left ear. On VA audiologic examination in April 2011, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 0 30 55 55 35 LEFT 10 50 65 65 48 Speech recognition was 98 percent on the right and 90 percent on the left. The foregoing examination results represent Level I hearing loss in the right ear and Level II hearing loss in the left ear. The examiner indicated that normal conversational speech could pose a challenge but that with proper amplification, the Veteran would be expected to be employable. The Board observes that an exceptional pattern of hearing loss has not been shown at any time and that Table VI has been used throughout to determine the numeric designation of hearing impairment in each ear. 38 C.F.R. §§ 4.85, 4.86. At worst, the Veteran has Level I hearing loss on the right and Level II hearing loss in the left. Applying Level I and Level II hearing loss to Table VII corresponds to a zero percent disability rating. As noted above, the ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. See Lendenmann, 3 Vet. App. at 349. There is no room for discretion herein. The evidence, as it stands, indicates the Veteran's service-connected bilateral hearing loss warrants no more than a zero percent evaluation throughout the appeal period. Fenderson, supra. As such, the Board cannot assign an evaluation in excess of zero percent. 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. Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, a VA examiner in April 2011 noted in essence that there was no functional impairment caused by the Veteran's hearing loss if he used amplification as necessary. The Board finds that functional impairment has been appropriately considered. The Court has held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that a claim for a TDIU is not raised by the record. Specifically, the evidence of record fails to show that the Veteran is unemployable, and neither the Veteran nor his representative has contended as much. Therefore, the Board finds that no further consideration of a TDIU is warranted. Id. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. In this Veteran's case, the Board recognizes and has considered the complaints of decreased auditory acuity and speech recognition impairment. The schedular rating criteria contemplate the limitations and impairment caused by the Veteran's service-connected hearing loss disability. The hearing loss disability rating on appeal is not one that is rated by analogy, but, instead, has been evaluated under applicable Diagnostic Code 6100, the schedular rating criteria of which specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiologic testing and speech recognition testing. Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation. The fact that there may be occupational impact does not render the rating schedule inadequate to evaluate the level of disability. Because the schedular rating criteria are adequate to rate the Veteran's service-connected hearing loss, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection for posttraumatic stress disorder (PTSD) requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (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. 38 C.F.R. § 3.304(f) (2012). The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness or horror. See DSM-IV § 309.81 (4th ed. 1994). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy." Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressor must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d),(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressor. Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) 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. For purposes of this paragraph, "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. 75 Fed. Reg. 39843 (July 13, 2010). The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010 but have not been decided by the Board as of July 13, 2010. Thus, they apply to the Veteran's claim. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Tinnitus The evidence is unequivocal in that the Veteran has a current diagnosis of tinnitus. First, the Veteran asserts that he suffers from tinnitus, and he is competent to do so. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (lay evidence may establish the existence of a current disorder capable of lay observation, to specifically include tinnitus). Next, the Board observes that it accepts the Veteran's assertions of tinnitus as credible because he has asserted its presence consistently since at least October 2007 when he filed his claim of service connection for that disability. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Board finds that the Veteran's tinnitus is not directly related to service because he did not report tinnitus in service or on service separation and because he expressly denied the presence of tinnitus during private treatment in June 2004, July 2005, and August 2007. As well, the Board emphasizes that the Veteran was afforded two VA audiologic examinations in connection with the claim, and neither examination report reflects a direct nexus between the Veteran's tinnitus and service. Thus, service connection for tinnitus on a direct basis is not warranted. 38 C.F.R. § 3.303. The Board next finds that service connection for tinnitus is warranted on a secondary basis. 38 C.F.R. § 3.310. The April 2011 VA examiner opined that the Veteran's tinnitus was, at least as likely as not, associated with the Veteran's hearing loss. Thus, resolving all reasonable doubt in the Veteran's favor, because there is a current diagnosis of tinnitus, a service-connected disability of bilateral hearing loss, and medical nexus evidence establishing a connection between the currently diagnosed tinnitus and the service-connected hearing loss, service connection for tinnitus is warranted as secondary to the Veteran's service-connected bilateral hearing loss. 38 C.F.R. § 3.310; Wallin, supra; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Acquired psychiatric disorder claimed as dyssomnia The service treatment records reflect no evidence of a psychiatric disorder to include dyssomnia. In his claim for benefits, the Veteran reported sleep problems since service separation in 1966. The Veteran first sought emergency mental health treatment in October 2007 apparently at the insistence of his wife due to sleep problems. The Veteran reported such symptoms as disturbed sleep and intrusive recollections. On examination, he was appropriately dressed and groomed, fully oriented, pleasant and cooperative, and presented no motor abnormalities. Speech and thought processes were normal. His mood was pleasant, and his affect was euthemic. There was no suicidal ideation, homicidal ideation, or evidence of psychosis. There were no ruminations, and there was no obsessional ideation. Memory was intact. Insight and judgment were appropriate. Probable PTSD was assessed, and the Veteran was told to return for a more comprehensive mental health evaluation on a nonemergency basis. In November 2007, the Veteran underwent a comprehensive mental health assessment. The Veteran indicated that he came to the PTSD clinic because his wife commented that he had difficulty sleeping. The Veteran did not see this as a problem and stated that he slept as he had been way since his return from Vietnam in 1966. Pursuant to a thorough interview, the Axis I diagnosis was of dyssomnia not otherwise specified. The examiner commented that the Veteran came to the PTSD clinic at his wife's urging due to his sleep patterns. The Veteran himself did not seem troubled by his sleep problems. The examiner noted that the Veteran did experience traumatic events in Vietnam but appeared to have adapted an appropriate strategy for avoiding thinking about them. The Veteran reported a solid work history, a stable relationship with his wife and family, a network of friends, and hobbies. Given the lack psychological symptoms, the Veteran was not interested in pursuing mental health treatment. In December 2007, a VA psychologist suspected that the Veteran was underreporting his symptoms. No psychiatric diagnosis was rendered, providing evidence against this claim. In order for service connection to be granted, a present disability must be shown. See, e.g., Brammer, supra. Here, the Veteran does not appear to be suffering from either an acquired psychiatric disorder or from an organic sleep disorder. On preliminary evaluation, probable PTSD was diagnosed, but the Veteran was referred for a more comprehensive evaluation. Upon further examination, no acquired psychiatric disorder was found. The Board emphasizes that the Veteran himself does not appear to perceive himself as having a psychiatric problem. Due to the absence of disability, service connection for an acquired psychiatric disorder claimed as dyssomnia is denied. Id.; 38 C.F.R. § 3.303; Shedden, supra. The best evidence at this time, including the Veteran's own statements, which appear highly credible, is that the Veteran does not have an acquired psychiatric disorder, including PTSD, at this time. The Board recognizes that dyssomnia was assessed. There is no indication of a specific organic disorder of sleep or a sleep problem related to an existing acquired psychiatric disorder. The diagnosis of dyssomnia is an apparent description of the nature of the Veteran's sleep. The fact that he has trouble sleeping is not necessarily a chronic "disability" related to service. As no specific sleep organic disorder was diagnosed and because the Veteran does not have an acquired psychiatric disorder, the claim must be denied. The Board has denied the Veteran's claim, as a present psychiatric and/or sleep disorder is not shown. In the event that the Veteran's situation changes in the future, and he begins to suffer from an organic sleep disorder or from some form of psychiatric disability related to his highly honorable military service, he is welcome to file a new claim for service connection at that time. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, with respect to the tinnitus claim, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The discussion that follows pertains to the claim for an increased rating for service-connected bilateral hearing loss and to the claim of entitlement to service connection for an acquired psychiatric disorder claimed as dyssomnia. After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the initial rating issue decided herein and with respect to the service connection issue decided herein. The RO sent the Veteran a letter in December 2007 that informed him of the requirements needed to establish service connection. Regarding hearing loss, as this case concerns an initial rating and comes before the Board on appeal from the decision which also granted service connection, there can be no prejudice to the Veteran from any alleged failure to give adequate 38 U.S.C.A. § 5103(a) notice for the service connection claim. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises from receipt of a notice of disagreement). Moreover, in this case, the December 2007 notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. The December 2007 notice letter also notified the Veteran that an effective date would be assigned if the claim were granted. The Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A. VA has obtained service treatment records, VA clinical records, private medical records, VA examination reports, and the Veteran's statements. The Veteran has been afforded adequate examinations on the issue of a higher initial rating for service-connected bilateral hearing loss. VA provided the Veteran with examinations in January 2008 and in April 2011. In conjunction with the examinations, the claims file and treatment records were reviewed, the Veteran's history was taken, and complete examinations with clinical measures were conducted. The conclusions reached and diagnoses given were consistent with the examination reports. Therefore, the Veteran has been afforded adequate examinations on the issue of initial rating for service-connected bilateral hearing loss. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). No VA examination was provided regarding the claim of service connection for an acquired psychiatric disorder claimed as dyssomnia. No examination is necessary, however, because, as discussed above, the best evidence in this case indicates there is no disability, including the statements of the Veteran himself. In such situations, a VA examination is not necessary. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A compensable evaluation for bilateral hearing loss is denied. Service connection for tinnitus is granted. Service connection for an acquired psychiatric disorder claimed as dyssomnia, with consideration of PTSD, is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs