Citation Nr: 1302379 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 02-09 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a bilateral foot disability. 4. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from April 1992 to April 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal of September 2001, June 2002 and September 2002 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The claims file was transferred to the RO in Albuquerque, New Mexico, in November 2002, and later to the Houston, Texas, RO. The Veteran testified before the Board at September 2003 and February 2010 hearings conducted at the RO. Transcripts of the hearings are of record. This case was brought before the Board in January 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The case is once again before the Board for appellate consideration of the issue on appeal. The issues of entitlement to service connection for bilateral foot and lumbar spine disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has been diagnosed by a VA psychologist as suffering from PTSD due to his fear of hostile military or terrorist activity. 2. The Veteran has not been diagnosed with bilateral hearing loss for VA purposes at any point during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C.A. § 1110 (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 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied through July 2001, August 2002, June 2005, March 2006 and October 2011 letters sent to the appellant that fully addressed all notice elements. The letters informed the appellant of what evidence was required to substantiate his service connection claims, and of the appellant's and VA's respective duties for obtaining evidence. Although not all of the letters were sent prior to the initial AOJ decisions on these matters, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case through the issuance of several supplemental statements of the case after the notice was provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations for his claimed PTSD and hearing loss. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Board finds these VA examinations adequate for the purposes of determining service connection, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate basis for the diagnosis rendered. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As a final note, the Board again observes this case was previously remanded by the Board in January 2011 for additional development. Specifically, the Board instructed that the Veteran be provided further VA examinations for his claimed disabilities. The Veteran was provided additional VA examinations in December 2011 and July 2012, which the Board has found to be adequate for the purposes of the instant case. As such, the Board finds there has been substantial compliance with the January 2011 remand with respect to the issues of service connection for PTSD and bilateral hearing loss, and adjudication of these claims may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr, 21 Vet. App. at 307 (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; 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). In this case, the Veteran contends that multiple noncombat-related stressors caused his PTSD, specifically related to his service in Peru and Saudi Arabia. As the Veteran's claimed stressors do not involve being engaged in combat with the enemy, his lay testimony alone is generally not enough to establish the occurrence of the alleged stressors. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). However, the regulations regarding service connection for PTSD were recently amended to provide that if a stressor claimed by a Veteran is related to the Veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not 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. 38 C.F.R. § 3.304(f)(3) (2012). For purposes of this section, "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; 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. The Veteran has alleged three stressors: (1) being on base in Saudi Arabia when three or four terrorist incidents occurred and he feared for his life; (2) while serving as a security specialist at a small military detachment (Detachment #7) in Yurimaguas, Peru for Operation Support Justice, where he encountered gunfire several times, thought he might not survive, and feared for the his own safety and that of those he was protecting; and (3) an incident where a civilian was killed that he felt he could have stopped while serving in Peru. Regarding the third claimed stressor, the Board notes it has not been verified by the record, despite sufficient attempts to do so. In an attempt to verify the Veteran's claimed stressors, the AOJ contacted the Air Force Historical Research Agency (AFHRA). In response to VA's inquiries, AFHRA responded that the Veteran's unit was attached to a radar site providing airspace information to US Air Force forces that were participating in a drug monitoring service provided to the government of Peru. While the Veteran's detachment was never directly attacked, there apparently was concern expressed for their safety. Regarding the Veteran's service in Saudi Arabia, AFHRA again noted there was no recorded attacks against Dhahran Air Base. The mission of this base was to support the "No Fly" Zone and to be prepared to respond to support United Nations Security Council Resolutions against the country of Iraq. Even though the Veteran's claimed stressors have not specifically been verified, that is, there are no records of attacks against the Veteran's unit during his service in Peru or Saudi Arabia, AFHRA records do note that there was concern expressed for the unit's safety. Further, the Veteran has submitted records indicating he was in receipt of increased pay for serving in a hostile area. As such, the Board finds the Veteran's claimed stressors of being fearful for his own safety and that of those he was protecting, especially while serving in Peru, are consistent with the circumstances, conditions, or hardships of the his service. See 38 C.F.R. § 3.304(f)(3) (2012). The Veteran's lay testimony is therefore sufficient to establish the occurrence of the claimed stressor. Id. The remaining question is whether the Veteran has been diagnosed with PTSD by a VA psychologist or psychiatrist due to such fear of hostile military or terrorist activity. Id. Significantly, the Veteran was provided a VA examination in July 2012, at which he recounted the stressors described above. Following a review of the claims folder and clinical evaluation of the Veteran, the VA examiner, a licensed psychologist, found the Veteran meets the DSM-IV criteria for a diagnosis of PTSD. In rendering this diagnosis, the VA examiner specifically found that the claimed stressors resulted in the Veteran's fear of hostile military or terrorist activity, and that the Veteran's response involved intense fear, helplessness or horror. The preponderance of the evidence supports the claim. The Veteran is diagnosed with PTSD by competent and credible medical professionals, and this diagnosis has been related to a verified and adequate stressor in service, namely a fear of hostile military or terrorist activity. Accordingly, service connection for PTSD is warranted. Bilateral Hearing Loss The Veteran seeks service connection for bilateral hearing loss due to in-service acoustic trauma. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz 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 (2012). The Veteran reported difficulty hearing at a March 2003 VA audiology consult. While specific audiometric findings are not recorded, the record notes pure tone thresholds were "well" within normal limits bilaterally, and speech recognition was good bilaterally. The Veteran was diagnosed with normal hearing bilaterally. The Veteran was provided a VA audiological examination in December 2011. Pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 10 10 LEFT 15 15 10 10 20 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. The report of the December 2011 VA examination clearly shows the Veteran does not suffer from hearing loss of either ear for VA purposes. See 38 C.F.R. § 3.385. There is no competent medical evidence indicating the Veteran has been diagnosed with hearing loss for VA purposes at any point during the pendency of the current claim. The Board acknowledges that the Veteran himself has claimed that he suffers from bilateral hearing loss as a result of his active service. However, as a layperson, the Veteran has no competence to give a medical opinion on the diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., decreased hearing ability; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). A key element for any grant of service connection is a finding of a current 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). The risk factor of in-service acoustic trauma is not germane in the absence of any resulting disability. The preponderance of the evidence is against the claim of service connection for bilateral hearing loss; there is no doubt to be resolved. Service connection for bilateral hearing loss is not warranted. ORDER Service connection for PTSD is granted. Service connection for bilateral hearing loss is denied. REMAND The Veteran claims service connection for a bilateral foot disability and a low back disability, both as resulting directly from his period of active service. For the reasons discussed below, another remand, with ensuing delay, is unfortunately required. The Veteran was provided a VA examination in December 2011 to address both service connection issues. With respect to a bilateral foot disability, the VA examiner rendered a negative etiological opinion, noting that the Veteran was "never diagnosed with a foot problem in service except for one visit in March 1996...[with] no follow-up." The examiner further noted that the Veteran currently complains of no symptoms related to his arches. However, the Board notes the Veteran was diagnosed with flat feet in July 2002, during the course of the instant appeal. Even though the Veteran may not currently suffer from a bilateral foot disability, he nevertheless has a "current disability" for the purposes of his claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time of the claim or during the pendency of that claim). Furthermore, the examiner did not address the Veteran's complaints of a continuity of symptomatology since service. See 38 C.F.R. § 3.303(b). With respect to a low back disability, the VA examiner again rendered a negative etiological opinion, noting that there is "no evidence" in the Veteran's service treatment records of a back condition or injury. Further, the examiner cited normal x-rays conducted in 2002, and notes the Veteran's current complaints of back pain were not noted in service and are consistent with normal spine and mechanical back pain. However, the Board observes the Veteran has submitted a service treatment record dated April 1995 noting a two-day history of low back pain and rendering a diagnosis of mild muscle strain. Furthermore, while the 2002 x-ray cited by the VA examiner was normal, a diagnosis of lumbar strain was nevertheless rendered at the time. Finally, the Veteran has consistently claimed a continuity of symptomatology regarding low back pain, testifying in September 2003 that he has gone at most one month since service without back pain. Once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). The December 2011 VA examination report and opinions contained therein are inconsistent with the evidence of record. The Veteran must be provided a new VA examination to determine whether his current bilateral foot and/or lumbar spine disabilities (or any such disabilities diagnosed during the course of the appeal) are etiologically related to his active service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to address the etiology of any currently diagnosed bilateral feet and lumbar spine disabilities. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Following a review of the claims folder, and physical examination of the Veteran, the examiner should provide an opinion addressing whether the Veteran's current bilateral foot and lumbar spine disabilities are at least as likely as not (probability of at least 50 percent) etiologically related to (caused or aggravated by, incurred in) the Veteran's active service. In offering this opinion, the examiner is instructed the record contains a current diagnosis of both bilateral flat feet and lumbar strain, and the opinion must address the Veteran's assertion of a continuity of symptomatology. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs