Citation Nr: 1314976 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-32 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the left ankle (ankle condition). 2. Entitlement to an initial rating in excess of 10 percent for myofascial pain syndrome of the right ankle with lateral laxity (ankle condition). 3. Entitlement to service connection for left knee condition. 4. Entitlement to service connection for right knee condition. 5. Entitlement to service connection for left gastrocnemius muscle condition (claimed as calf). 6. Entitlement to service connection for right gastrocnemius muscle condition (claimed as calf). 7. Entitlement to service connection for bilateral visual condition. 8. Entitlement to service connection for bilateral hearing loss. 9. Entitlement to service connection for post-traumatic stress disorder (PTSD). 10. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from August 1995 to May 2008. However, the RO has determined only the Veteran's service from August 23, 1995 to November 9, 2002 is honorable for VA purposes. The period from November 10, 2002 to May 30, 2008 is considered to be dishonorable for VA purposes due to willful and persistent misconduct by the Veteran. 38 C.F.R. § 3.12(d)(4). While the Veteran initially filed a notice of disagreement regarding this determination, he did not appeal this matter to the Board. As such, the question of his period of dishonorable service is not before the Board. Benefits administered by Department of Veterans Affairs may not be paid when the period of service on which a claim is based was dishonorable for VA purposes. As such, benefits made not be granted based on the Veteran's service after November 9, 2002, and service treatment records after this date will not be considered. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The evidence of record does not establish the Veteran experienced marked limitation of motion in either ankle at any point during the period on appeal. 2. The weight of the evidence is against a finding that the Veteran currently has a disabling condition in either knee that began during, or was otherwise caused by, his honorable military service. 3. The weight of the evidence is against a finding that the Veteran currently has a disabling condition in either calf that began during, or was otherwise caused by, his honorable military service. 4. The weight of the evidence is against a finding that the Veteran currently has a visual condition that began during, or was otherwise caused by, his honorable military service. 5. The weight of the evidence is against a finding that the Veteran currently has bilateral hearing loss that began during, or was otherwise caused by, his honorable military service. 6. The weight of the evidence is against a finding that the Veteran's currently diagnosed post-traumatic stress disorder began during, or was otherwise caused by, his honorable military service. 7. The weight of the evidence is against a finding that the Veteran currently has a depressive disorder that began during, or was otherwise caused by, his honorable military service. CONCLUSIONS OF LAW 1. Criteria for a rating in excess of 10 percent for an ankle condition in each leg has not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5270-5274 (2012). 2. Criteria for service connection for a bilateral knee condition have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 3. Criteria for service connection for a bilateral calf condition have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 4. Criteria for service connection for a bilateral visual condition have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 5. 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 (2012). 6. Criteria for service connection for post-traumatic stress disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). 7. Criteria for service connection for a depressive disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for Bilateral Ankle Condition Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the Veteran is seeking an increased initial rating for his bilateral ankle condition. In December 2008 the RO granted a 10 percent rating in each ankle with an effective date of June 2008, when the Veteran filed his claim. An earlier effective date cannot be assigned because the Veteran's last discharge involved a period of service dishonorable for VA purposes. As such, all evidence since grant of service connection has been reviewed and considered, and relevant evidence is summarized below. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5270 through 5274 relate to disabilities of the ankle. Diagnostic Code 5270 provides ratings for ankylosis of the ankle. Ankylosis of the ankle in planter flexion less than 30 degrees is to be rated 20 percent disabling; ankylosis of the ankle in planter flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, is to be rated 30 percent disabling; ankylosis of the ankle in planter flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity, is to be rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5271 provides ratings based on limitation of extension of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling; and marked limitation of motion of the ankle is rated as 20 percent disabling. Id. Diagnostic Code 5272 provides ratings based on ankylosis of the subastragalar or tarsal joint. Ankylosis in good weight-bearing position is rated as 10 percent disabling; while ankylosis in poor weight-bearing position is rated as 20 percent disabling. Id. Diagnostic Code 5273 provides ratings based on malunion of os calcis or astragalus. Moderate deformity is rated as 10 percent while marked deformity is rated as 20 percent disabling. Finally, Diagnostic Code 5274 provides a rating of 20 percent disabling if the Veteran has had an astragalectomy. The Veteran was provided with a VA examination in December 2008. The Veteran reported pain in his ankles with weight bearing, walking, and climbing stairs or ladders. The Veteran reported this condition began in service and has gotten progressively worse. He treats the pain with ibuprofen and an over-the-counter soft ankle brace. He also reported he was unable to walk more than a few hundred yards without stopping and is not able to stand for three hours. The examiner also reviewed the Veteran's service treatment records. Upon examination of the left ankle the examiner found no deformity, weakness, or instability, but did note pain and stiffness. Range of motion was dosiflexion from 0 to 15 degrees, with pain from 10 to 15 degrees; plantar flexion from 0 to 40 degrees with pain at 40 degrees; inversion from 0 to 30 degrees without pain; and eversion from 0 to 20 degrees without pain. X-ray revealed no fracture, dislocation, joint space effusion, or ligament tear. However, mild cortical irregularity at the distal medial malleolus and adjacent talus was noted, suggesting degenerative changes. The examiner found the right ankle did not exhibit deformity, stiffness, or weakness, but did have pain and instability. Range of motion testing revealed dorsiflexion from 0 to 10 degrees with pain during the same range; plantar flexion 0 to 40 degrees with pain at 40 degrees, inversion 0 to 35 degrees without pain, and eversion 0 to 20 degrees without pain. X-ray revealed no soft tissue swelling or fracture. Normal joint spacing was noted throughout the ankle. The examiner noted the Veteran's range of motion was essentially equivalent on repeat testing and did not reveal functional loss in either ankle. He also indicated no joint ankylosis in either ankle. Based on the foregoing the examiner opined the Veteran had degenerative joint disease in his left ankle and myofascial pain syndrome with lateral laxity in his right ankle. He found this condition had significant effects on the Veteran's occupation due to decreased mobility and pain. He also noted the Veteran experienced some impairment on usual daily activities, including mild impairment in chores and shopping, moderate impairment in exercise, and severe impairment in sports. The Board finds the results of this diagnostic testing revealed the Veteran had some limited motion in both ankles; however he was still able to point and flex both ankles through most of the normal range of motion. As such, the Board finds this testing revealed only moderate limited motion, which relates to a 10 percent rating under Diagnostic Code 5271. 38 C.F.R. § 4.71a. A maximum 20 percent rating is not warranted unless the Veteran demonstrates marked limited ankle motion. Therefore, the Board finds a 10 percent rating was appropriate at this time. VA treatment records from the period on appeal have also been reviewed. In December 2008, the Veteran reported to the VA emergency room with complaint of chronic bilateral ankle pain. He reported his job at Amazon required him to walk 10 to 12 hours a day on concrete floors. The physician assistant recommended the Veteran wear better foot wear, and to return in a few weeks if his pain didn't improve. In April 2009 the Veteran again sought treatment for his ankle pain. He reported he had missed two days of work due to pain in his knees and ankles. In May 2009 the Veteran went to the emergency room with complaint of left ankle pain. The nurse diagnosed an ankle sprain and advised the Veteran not to bear any weight on his left ankle or foot. He was also given stronger pain medication, crutches, and an ACE wrap. In July 2009 the Veteran reported pain and swelling in his right ankle for the previous three days. The Veteran reported he could barely walk due to his pain. The medical professionals recommended rest, ice, and elevation. In his September 2009 substantive appeal the Veteran noted he was scheduled to have surgery in his right ankle in January 2010. However, the medical evidence of record does not reflect such a surgery was scheduled, and treatment records after that date do not reflect surgery was performed. In October 2009 the Veteran reported he missed several days of work due to his ankle pain. In September 2010 the Veteran reported his bilateral ankle pain was no better. The Veteran reported last time he sought treatment he was given crutches and told he needed surgery. This later statement from the Veteran suggests he did not have surgery in January 2010. The Veteran reported his right ankle was painful and swollen. He stated the pain was 9 out of 10 and he could barely walk. The physician opined the Veteran had a serious flare up of rheumatoid arthritis. Therefore, treatment records after the Veteran's VA examination demonstrated that he sought treatment for flare-ups of pain in both ankles. However, the Veteran did not make any complaint of, or seek treatment for, increased limitation in his range of motion in his ankles. As such, the Board finds that the medical evidence of record does not reflect that the Veteran experienced marked limitation of motion in his ankle during the period on appeal. Therefore, the Board finds that a rating in excess of 10 percent under Diagnostic Code 5271is not warranted during the period on appeal. The Board also finds that a rating in excess of 10 percent bilaterally is not warranted under the other diagnostic codes related to the ankle. Diagnostic Code 5270 applies to ankylosis of the ankle. The December 2008 examiner specifically found no ankylosis of either ankle was present. Treatment records after the VA examination also do not reference ankylosis of either ankle. As such, the Board finds that a rating under this code is not warranted. Similarly, code 5272 relates to anklyosis of the subastragalar or tarsal joint. The medical evidence of record was reviewed, but does not establish the Veteran had anklyosis of the subastragalar or tarsal joint at any point during the period on appeal. As such, a rating under this code is also not warranted. Diagnostic Code 5273 relates to malunion of the os calcis or astragalus. However, x-rays from December 2008 revealed the right ankle was normal, and the left ankle only had degenerative changes. As such, the best medical evidence does not suggest the Veteran had malunion of the os calcis or astragalus. As such, a rating under this diagnostic code is not warranted. Finally, Diagnostic Code 5274 relates to astragalectomy, a surgery which removes the ankle bone. The medical evidence does not establish the Veteran had this surgery performed, and as such a rating under this code is not warranted. Therefore, the Board finds the Veteran is not entitled to a rating in excess of 10 percent bilaterally due to his ankle condition at this time. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the Board has particularly noted that Veteran's statements and his complaints of pain. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In the December 2008 exam the examiner performed repetitive use testing on the Veteran and noted he did not experience additional functional loss. After his examination the Veteran sought treatment on several occasions for increased pain in his ankles. However, the Board notes that although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board finds that the VA treatment records do not establish the Veteran experienced additional functional loss due to his reported pain. As such, the Board finds a higher rating is not warranted under DeLuca, notwithstanding the Veteran's complaints cited above. The examination reports, based on objective review of the disability, simply do not support a finding of a higher rating beyond ten percent, and providing highly probative evidence against a higher evaluation that outweigh the evidence cited above that supports this claim. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a veteran is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describes the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. In this case, the Board finds that the schedular rating criteria reasonably describe the Veteran's symptomatology and disability level. The Veteran's primary complaints are of pain and swelling in his ankles. The Board finds that pain has already been specifically contemplated by the rating criteria and the DeLuca factors. The Board notes that the record reflects the Veteran sought treatment from a VA hospital for his ankles on several occasions, including the emergency room, however the record does not establish he was hospitalized for his bilateral condition. Similarly, the Board also notes the record establishes the Veteran had to miss several days of work over the course of the appeal period due to pain from his bilateral ankle condition. However, the evidence does not establish that the Veteran suffered marked interference with his employment beyond that already contemplated by the schedular rating criteria. See 38 C.F.R. § 4.1. As such, the Board finds that the Veteran's disability picture is not exceptional, and an extraschedular consideration is not required. In this regard, it is important for the Veteran to understand that a 20 percent disability evaluation (for both ankles) will cause the Veteran, by definition, difficulties. If it did not, there would be no basis for the 20 percent disability evaluation, an evaluation which indicates, very generally, a 20 percent reduction in industrial adaptability, with limitations that the Veteran has indicated above, such as walking. If he did not have these problems, there would be no basis for a compensable evaluation, let alone the current evaluation. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, the evidence of record suggests the Veteran continues to be employed as a warehouse supervisor at Amazon on a full-time basis. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected bilateral ankle condition. Service Connection Overview In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. However, in this case service connection could not be granted for the Veteran's claims on a presumptive basis as his presumptive one year period after the conclusion of his honorable service for VA purposes overlaps with a period of military service which is dishonorable for VA purposes. As such, the theory of service connection on a presumptive basis is not applicable in these claims and will not be further addressed. Bilateral Knee and Calf Conditions The Veteran is seeking service connection for bilateral knee and calf conditions. As discussed above, the Veteran's honorable for VA purposes military service is from August 1995 through November 2002. As such, service treatment records from this period have been reviewed. At the Veteran's January 1994 enlistment examination the examiner noted his right leg was shorter than his left. As such, this condition of differing leg lengths pre-dates the Veteran's active military service. The Veteran's service treatment records for his period of honorable service reflect the Veteran sought treatment on several occasions for his ankles, for which service connection has been granted as discussed above. However service treatment records do not establish the Veteran made any complaint or, of sought any treatment for, any other leg condition, to include any knee or calf conditions. As such, the Board finds the Veteran did not experience a chronic knee or calf condition in either leg during his period of honorable military service. Similarly, post-service treatment records have also been reviewed but do not establish the Veteran currently has a chronic knee or calf disability in either leg. The Board notes that in December 2008 the Veteran sought treatment at a VA emergency room with a complaint of pain in his knees and ankles. However, the Board notes that no diagnosis was made regarding the Veteran's knee pain. Similarly, in April 2009 the Veteran reported that he had missed work for two days due to ankle and knee pain. However, the nurse noted the Veteran's chief complaint was ankle pain, and the Veteran exhibited swelling of the ankle and leg "localized above the painful ankle." As such, the Board finds this treatment record also did not make any diagnosis regarding the Veteran's knees or calves. The record does not contain any additional reference to the Veteran's alleged knee or calf condition. Therefore, the Board finds the post-service treatment records do not establish the Veteran currently has a chronic disability in either knee or calf. The Board notes that as a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as pain in both knees and calves. Layno v. Brown, 6 Vet. App. 465 (1994). As such, the Board has considered the Veteran's complaint of bilateral knee and calf pain. However, VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. The VA needs to identify a disability, not symptoms of a disability. Accordingly, service connection cannot be granted for symptoms of a disability, such as pain alone. As such, service connection cannot be granted solely based on the Veteran's lay statements regarding his pain. Finally, the Board notes the VA examination from December 2008 did not examine the Veteran's knees of calves. However, as will be discussed below in the Duties to Notify and Assist section, the Board finds that because there is no evidence of a current disability and no evidence of a disease or injury which began in service, that a VA examination was not required for the Veteran's alleged bilateral knee or calf condition. Based on the foregoing the Veteran's claims for service connection for a bilateral knee condition and bilateral calf condition are denied. Vision The Veteran is also seeking service connection for an alleged bilateral visual condition. Service treatment records from his period of honorable service were reviewed and relevant evidence is summarized below. At the Veteran's entrance physical in January 1994 his vision was tested. The military examiner noted the distance vision in his right eye was 20/25, corrected to 20/20 with pinhole. Distance vision in his left eye was 20/20. The Veteran's near vision was 20/20 bilaterally. As such, the examiner found the Veteran's eyes to be in normal condition upon entrance to service. In November 2000 the Veteran was provided with an additional military examination of his eyes. His near distance was 20/20 bilaterally, distance vision in his right eye was 20/50 and distance vision in his left eye was 20/30. The examiner rated the Veteran's eye condition as normal, assigning the Veteran E-1 on the PULHES military physical profile scale. In March 2001 the Veteran sought treatment for pain in his right eye. He described his eye as tender and sore. He noted it had previously been swollen, but now had gone down. The medical professional did not diagnose any chronic eye condition at this time. Service treatment records reveal the Veteran again sought treatment for eye pain in May 2001. The Veteran reported he had a foreign body in his eye since three days earlier, and now experienced pain and drainage. The medical professional opined the Veteran had conjunctivitis and abrasion of the eye. He gave the Veteran medicated drops for his eyes and a warm compress. However, the examiner again did not diagnose any chronic eye condition. Service treatment records do not reflect the Veteran sought additional treatment for his eyes during his period of honorable military service. Therefore, although the Veteran sought treatment on two occasions for eye pain, the record suggests his experiences of pain were temporary and resolved without need for additional treatment. As such, the Board finds that the service treatment records do not establish the Veteran experienced a chronic eye condition while in service. Post-service treatment records have been reviewed and do not establish the Veteran had any complaint of, nor sought any treatment for, any vision condition during the period on appeal. As such, the Board finds the medical record of evidence does not establish the Veteran has a current bilateral visual disability for which benefits could be granted. The record also reveals the Veteran failed to report to his scheduled VA visual examination. VA regulations provide that when the Veteran fails to report to an examination scheduled in conjunction with an original compensation claim, the claim shall be determined based on the evidence of record. 38 C.F.R. § 3.655(b). As discussion above, the Board finds the current evidence of record does not establish the Veteran has a current vision condition, or experienced a chronic vision condition while in service. As such, the Veteran's claim for service connection for a bilateral vision condition is denied. Hearing Loss As an initial point, the Board acknowledges that the Veteran was routinely exposed to loud noise during his military service in the army. Due to his routine noise exposure, he was provided several audiograms throughout his military service. The relevant results from each test are summarized in the charts below, with pure tone threshold recorded in decibels. The Veteran was first provided with audiometric testing upon entrance into service in January 1994. HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 0 0 LEFT 10 5 0 0 0 The Veteran was then provided additional testing in March 1996. The report also indicates the Veteran was provided with earplugs. HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 5 0 LEFT 15 10 0 0 5 Additional testing was provided in November 1998. HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 5 0 LEFT 15 10 5 0 0 The Veteran's hearing acuity was again tested in November 1999. HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 -5 0 0 LEFT 15 15 5 5 10 The final audiometric testing conducted during the Veteran's period of honorable for VA purposes active duty was provided in November 2000. HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 -5 0 0 LEFT 15 15 5 5 10 Under the applicable VA regulations hearing impairment constitutes a disability for VA purposes when auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. The Court of Appeals for Veterans Claims (Court) has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As such, the Board finds that all audiometric testing performed during the Veteran's honorable active duty reveal he had normal hearing. Therefore, the evidence does not establish the Veteran had any hearing loss during his honorable for VA purposes active duty. Post-service treatment records have been reviewed and do not establish the Veteran had any complaint of, or sought any treatment for, hearing loss during the period on appeal. Instead, in a January 2009 treatment record the Veteran denied experiencing any deafness, tinnitus, or ear pain, providing evidence against his claim. In addition, the record also reveals the Veteran failed to report to his scheduled VA audio examination. VA regulations provide that when the Veteran fails to report to an examination scheduled in conjunction with an original compensation claim, the claim shall be determined based on the evidence of record. 38 C.F.R. § 3.655(b). As such, the Board finds the current evidence of record does not establish the Veteran had a hearing disability at any point during the period on appeal. As there is no disability based on which benefits could be granted, the Veteran's claim for service connection for a bilateral hearing loss is denied. Acquired Psychiatric Disorder, to include PTSD and Major Depressive Disorder Finally, the Veteran also filed for service connection for "depression (symptoms of PTSD)." The RO has developed the Veteran's statement as a claim for both PTSD and depressive disorder. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). As will be discussed further below, the Board notes the record does contain a diagnosis of PTSD, however, the evidence does not establish that an in-service stressor occurred during the Veteran's honorable military service. In this case, the VA received the Veteran's claim for benefits in June 2008. However, the Veteran did not provide any statement regarding in-service stressors that may have occurred. Service treatment records from the Veteran's period of honorable military service have been reviewed but do not establish the Veteran made any complaint of, or sought any treatment for, a psychiatric disorder, to include PTSD or depressive disorder. As such, the Board finds that the Veteran did not experience a chronic psychiatric condition during his period of honorable military service. The Board notes that VA regulations provide that if the Veteran was engaged in combat with the enemy, and his claimed stressor is related to that combat, then the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as there is not clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(2). However, in this case the Veteran's service records establish the Veteran was not exposed to combat during his period of honorable service, but only served in combat during his later period of dishonorable for VA purposes service. As such, the Board finds the Veteran cannot establish the occurrence of in-service stressors under the combat presumption in this claim. Additionally, the Board notes that in 2010 the VA amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor in some situations. 38 C.F.R. § 3.304(f). However, this added paragraph of relaxed standards only applies "if a stressor claimed by the veteran is related to the veteran's fear of hostile military or terrorist activity." 38 C.F.R. § 3.304(f)(3). However, in this case the Veteran has not contended that his stressor is related to fear of hostile military or terrorist activity. As such, the Board finds this regulation also does not apply. Therefore, in order to establish service connection for PTSD the evidence must corroborate the occurrence of an in-service stressor during the Veteran's period of honorable military service. In September 2008 the RO issued a formal finding which found lack of information to corroborate the Veteran's in-service stressors. The RO found the description from the Veteran was insufficient to send to the U.S. Army and Joint Service Records Research Center (JSRRC). The RO also reported they sent the Veteran a letter requesting information on his PTSD in August 2008, however the Board notes a copy of this letter was not associated with the claims file. The claims file does include a copy of the VCAA notice send to the Veteran in August 2008 which detailed the evidence needed to aid in making a determination, including a description of the information needed to corroborate a claimed in-service stressor in support of his claim for PTSD. The Veteran did not respond to either letter, and to date has not provided the VA with a statement regarding his in-service stressors. Post-service treatment records were reviewed. In December 2008 the Veteran was screened for PTSD. He reported experiencing little interest in pleasure or doing things more than half the days, and feeling down, depressed, or hopeless on several days. The Veteran also reported he experienced the following events during his military service: "blast or explosion IED (improvised explosive device), RPG (rocket propelled grenade), land mine, grenade, etc." The Veteran denied experiencing any PTSD symptoms immediately afterward. The Board notes this vague statement by the Veteran does not include any reference to location or time during which the Veteran witnessed the alleged events. As such, the Board is unable to corroborate whether these events occurred or determine if they occurred during the Veteran's honorable for VA purposes military service. As such, the Board finds this statement to a VA medical professional is not sufficient evidence is corroborate in-service stressors, and is not specific enough to search the JSRRC or other appropriate record depositories for supporting information. In August 2009 the Veteran was seen for a mental health consult. He reported symptoms of sleep problems, nightmares, intrusive thoughts, emotional numbing, social isolation, heightened startle response, irritable mood, anxiety, and hyperviligence. The social worker diagnosed the Veteran with PTSD and placed him on medication. As such, the Board finds the Veteran does have a current diagnosis of PTSD. As the same appointment the social worker specifically noted the Veteran does not have depressive disorder. However, in regards to his in-service experience the Veteran reported to his social worker he had "no direct exposure to blasts but almost constant mortar attacks, small arms combat and loss of his best friend (from Boot Camp 9 years previous) to an IED blast." The Board finds these statements are not sufficient to corroborate in service stressors or warrant further development. The Veteran does not provide any details regarding the time or location these alleged events occur. The Board is not able to determine the blasts or mortar attacks occurred during the Veteran's honorable military service or during his period of dishonorable service when he was exposed to combat in Iraq. Furthermore, the Board notes his statement does not specifically suggest the Veteran witness or experienced the claims stressors himself. As such, the Board finds this vague statement does not provide sufficient evidence to corroborate the alleged stressors during the Veteran's honorable military service. The Veteran was again seen on November 2009 regarding his mental health. Adjustment of the Veteran's medication was recommended. In July 2010 the RO sent the Veteran an additional letter requesting details regarding the Veteran's in-service stressors and included a form questionnaire regarding this subject. The Veteran again did not respond to the RO's letter. Based on all of the foregoing the Board finds that the Veteran has not established service connection for an acquired psychiatric illness at this time. Service treatment records do not establish the Veteran experienced any psychiatric condition during his honorable military service. Post-service treatment records establish the Veteran was diagnosed with PTSD, but do not include any other psychiatric condition diagnosis, including depressive disorder. Finally, the evidence of record does not corroborate that the Veteran experienced in-service stressors during his period of honorable military service for VA purposes, the only basis under the law the VA may grant PTSD in this case. In this regard, the complexity of this case is clear. The Board notes the RO has made several attempts to procure additional information from the Veteran regarding these in-service stressors, but the Veteran has not responded to their numerous requests. In light of the Veteran's inaction a remand of the case would serve no constructive purpose as the Board would only attempt to do what the RO has attempted to do on repeated occasions, over several years, with no success. Therefore, due to the Veteran's lack of cooperation, the Board finds based on the evidence currently of record the Board is not able to grant service connection for the Veteran's currently diagnosed PTSD at this time. If the Veteran is able to provide more information regarding his claimed in-service stressors which occurred during his period of honorable service, he may file a new claim with the VA. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in August 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established, as well as the information needed to establish service connection for PTSD. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. As to VA's duty to assist, 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). Service treatment records were obtained, as were post-service VA treatment records. The Veteran has indicated that no private treatment records exist. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with a VA examination regarding his claim for an increased rating for his bilateral ankle condition. The report of this examination has been associated with the claims file. The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. In addition, the Veteran failed to report to his scheduled VA examinations regarding his alleged visual and hearing conditions, and has not requested these examinations be rescheduled. When the Veteran fails to report to an examination in an initial claim VA regulations required his claim be determined based on the information of record. 38 C.F.R. § 3.655. As such, the Board finds the RO has complied with the duty to assist regarding the Veteran's claims for hearing and visual conditions. Finally, the Board acknowledges that the Veteran was not provided with a VA examination in regards to his claims for bilateral condition of the knees and calves, of for his claims for acquired psychiatric condition. However, as will be discussed below, the Board finds an examination was not required in these claims. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifested during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board finds that there is no competent evidence that the Veteran has a current disability or persistent recurrent symptoms in his claims for bilateral knee and calf conditions and major depressive disorder. As such, these claims fail the first factor, and no examination was required. In regards to the Veteran's claim for PTSD, although there is competent evidence of a current disability, there is no indication that the Veteran's current PTSD may be associated with his honorable for VA purposes military service for reasons cited above (stressor based on something that occurred during the Veteran's honorable service). Efforts to obtain evidence that would provide the basis for an examination by the RO have been unsuccessful and the Board finds no reason to believe it would be more successful if it undertook the same effort. As such, the Veteran's claim for PTSD fails the third factor, and a VA examination was not required. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs