Citation Nr: 1302115	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  10-43 676	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri



THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD). 

2.  Entitlement to a service connection for bilateral hearing loss.
 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

M. Hudson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1970 to February 1972.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 

In May 2010, the Veteran submitted a Notice of Disagreement (NOD).  In his NOD, the Veteran discussed entitlement to service connection for his benign enlarged prostate.  This  issue of a prostate disability has therefore been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Thus, the Board does not have jurisdiction over it, and this issue is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1.  The Veteran does not have PTSD.

2.  The Veteran does not have a bilateral hearing loss disability.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for PTSD have not been met.  38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.304(f) (2012).

2.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).  





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran contends that service connection is warranted for PTSD, as it was incurred due to trauma associated with his military service in Vietnam.  Additionally, the Veteran claims that service connection is warranted for bilateral hearing loss due to exposure to acoustic trauma during service.  

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following:  (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  Continuity of symptomatology can be demonstrated by showing:  (1) a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms.  Savage v. Gober, 10 Vet. App. 488 (1997).

I. PTSD

The Veteran claims he is entitled to service connection for PTSD as he experienced several traumas during his military service in Vietnam and now experiences difficulty sleeping, anxiety and depression.  The Veteran's records show that he served as a combat infantryman during his ten months in Vietnam.  The Veteran was awarded a Purple Heart, a Combat Infantryman Badge and Bronze Star Medal due to his combat service.

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a)  (DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 32 (4th ed.) (1994) (DSM IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred (unless the evidence shows that the Veteran engaged in combat and the claimed stressor is related to combat).  38 C.F.R. § 3.304(f) .

The Board finds the evidence establishes the Veteran does not have PTSD.  Service treatment records (STRs) are negative for complaints or treatment pertaining to PTSD and the January 1972 separation examination shows the Veteran was found to be psychiatrically normal. 

The Veteran was afforded a fee-based PTSD examination in February 2009.  The examiner concluded that the Veteran experienced some traumatic events during service and has occasional intrusive recollections directly related to his combat.  While the examiner stated the Veteran's traumatic combat experiences met the DSM-IV stressor criteria for a diagnosis of PTSD, the examiner found that overall the Veteran does not have sufficient other symptoms, nor sufficient impairment from symptoms, to justify a diagnosis of PTSD.

In his NOD, the Veteran states he feels depressed and has trouble sleeping at night, which causes him more stress and anxiety.  The examiner addressed these issues during the February 2009 PTSD examination.  The examiner noted the Veteran stated he had sleep impairment due to urinary frequency from an enlarged prostate and not due to psychiatric issues.  The examiner noted the Veteran's mild depression or depressed mood that lasts once a week for up to one hour and his mild to moderate daily anxiety.   However, the examiner did not diagnose the Veteran with depression or anxiety disorders.   The Veteran also stated in his NOD that he used to experience nightmares; however, the Veteran stated previously that he does not experience nightmares recently.  See Statement in Support of Claim, October 29, 2008.  Overall, there are no post-service medical records showing treatment or diagnosis of PTSD or any other psychiatric disorders.

Despite the negative objective medical findings, the Veteran has reported the presence of PTSD.  Lay testimony is competent to establish the presence of observable symptomatology and ". . . may provide sufficient support for a claim of service connection . . ."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Whether lay evidence is competent and sufficient to establish a diagnosis in a particular case is a fact issue to be addressed by the Board.  Jandreau, 492 F.3d at 1377 (noting general competence of laypersons to testify as to symptoms but not medical diagnosis and noting example of competence of lay testimony with regard to a broken leg but not a form of cancer).  The Board finds the Veteran is not competent to diagnose the presence of PTSD.  He is competent to identify and explain the symptoms that he observes and experiences, but diagnosis of PTSD requires more than simple observation of symptoms.  See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009).  Psychiatric disorders are by their very nature complex disabilities that require specialized training to properly diagnose.  See M21-1, Part III, Subpart iv, Chap. 4, Sec. H, Para. 31-c  (DATE).  The Board finds the Veteran is not competent to diagnose himself with PTSD. 

The evidence therefore establishes that the Veteran does not have PTSD due to service.  Absent proof of the existence of the disability being claimed, there can be no valid claim.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer  v. Derwinski, 3 Vet. App. 223 (1992).  Accordingly, the Board must conclude that the preponderance of the evidence is against the claim.

II. Bilateral Hearing Loss

The Veteran contends that he incurred a bilateral hearing loss disability due to acoustic trauma he was exposed to during his combat service in Vietnam.  

Under 38 C.F.R. § 3.385, for VA purposes, impaired hearing will be considered to be a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  After review of the complete record, the Board finds that evidence is against a finding that there is a current bilateral hearing loss disability. 

STRs are negative for complaints or treatment pertaining to hearing loss.  The Veteran's ears and hearing were found to be normal upon examination for separation from active duty service in January 1972.  In fact, the Veteran's STRs show his hearing improved between induction and separation.  On his separation examination, the Veteran specifically stated that he was in good health. 

The post-service medical evidence of record is entirely negative for objective evidence of hearing loss.  The record shows the Veteran first complained of hearing loss on his claim for compensation in September 2008, over 36 years after separation from active duty service.

The Veteran was provided a fee-based audiological examination in February 2009. Testing showed hearing was within normal limits, specifically, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
15
15
20
LEFT
0
5
5
30
35

Speech audiometry revealed speech recognition ability of 100 percent in both ears.  The Veteran was diagnosed with normal hearing loss in the right ear and mild sensorineural hearing loss in the left ear.  

The Veteran's bilateral hearing loss cannot be service connected as none of his auditory thresholds from 500 to 4000 are 40 decibels or greater, less than three of the frequencies from 500 to 4000 are 26 decibels or greater, and speech recognition scores on the Maryland CNC Test were not less than 94 percent.  See 38 C.F.R. § 3.385.

Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno, 6 Vet. App. at 469.  Whether lay evidence is competent and sufficient to establish a diagnosis in a particular case is a fact issue to be addressed by the Board.  Jandreau, 492 F.3d at 1377.  The Board finds the Veteran is not competent to diagnose the presence of bilateral hearing loss for VA purposes.  He is competent to identify and explain the symptoms that he observes and experiences, but hearing loss for VA compensation purposes requires more than simple observation of symptoms.  See Clemons, 23 Vet. App. at 4-5.  VA requires that hearing loss be of a certain severity that is verified by specific testing with specialist equipment before it is considered a disability.  See 38 C.F.R. § 3.385.  The Board therefore finds that the Veteran is not competent to diagnose a hearing loss disability for VA purposes. 

In sum, the evidence is against a finding of bilateral hearing loss for VA purposes due to service.  Absent proof of the existence of the disability being claimed, there can be no valid claim.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer  v. Derwinski, 3 Vet. App. 223 (1992).  Accordingly, the Board must conclude that the preponderance of the evidence is against the claim.

III.  Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in an October 2008 letter.  The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the October 2008 letter.   

VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

VA has obtained the Veteran's STRs.  The Veteran has not reported any further records of treatment.  Additionally, the Veteran was provided with one fee-based PTSD examination and one fee-based audiological examination in response to his claims.  See 38 U.S.C.A. § 5103A.  The examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions.

For the reasons set forth above, the Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. 


ORDER

 Entitlement to service connection PTSD is denied.

Entitlement to service connection for bilateral hearing loss is denied.





____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs