Citation Nr: 1324729 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-32 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an eye disability, to include glaucoma. 3. Entitlement to service connection for a psychiatric disability, to included posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from March 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. Claims for service connection for psychiatric disorders, including PTSD, may encompass claims for service connection for all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized the issue on appeal related to the Veteran's PTSD claim. In August 2012, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of this testimony is associated with the claims file. The case was previously before the Board in November 2012, when it was remanded for additional development including examination and medical opinions. The requested development has been completed. The Veteran's appeal was processed, in part, using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's service treatment records and service personnel records are reported destroyed by fire and unavailable; VA's attempts to obtain alternate records have been unsuccessful. 2. The Veteran experienced artillery and tank noise exposure during service. 3. The Veteran has a current hearing loss disability. 4. Current hearing loss is not the result of a disease or injury, including noise exposure, experienced during service; current hearing loss is more likely age related. 5. The Veteran has current eye disabilities diagnosed as: advanced open angle glaucoma of both eyes; pseudophakia of both eyes; and , left eye homonymous heminopsia. 6. A current eye disability is not the result of a disease or injury, including any eye injury, experienced during service. 7. The Veteran did not engage in combat with the enemy. 8. Credible supporting evidence had not been presented or secured to support the occurrence of the non-combat stressor which the Veteran claims to have experienced in service. 9. Current diagnoses of posttraumatic stress disorder (PTSD) are based upon a non-combat stressor for which no credible supporting evidence has been presented or secured. 10. Post-service diagnoses of depression have not been shown to have resulted from a disease or injury incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 101(16), 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for an eye disability, to include glaucoma, have not been met. 38 U.S.C.A. §§ 101(16), 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 3. The criteria for service connection for a psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA 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. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant notice for his claims for service connection f in letters dated April 2008, December 2008, and June 2009. These notification letters substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim, the relative duties of VA and the claimant to obtain evidence, and the requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) regarding notification of the laws regarding degrees of disability and effective dates. This notice was provided prior to the November 2009 rating decision on appeal. VA has obtained VA examination reports; private treatment records, VA treatment records; assisted the appellant in obtaining evidence; and afforded him the opportunity to present statements and evidence. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file and he has not contended otherwise. Accordingly, the appellant is not prejudiced by a decision at this time. II. Service Connection. Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for a disability or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. VA's duty to assist is heightened when records are in the control of a government agency. Gobber v. Derwinski, 2 Vet. App. 470 (1992). The Veteran served on active duty in the Army from March 1953 to March 1955. A copy of his discharge papers, DD 214, has been obtained and it reveals that he served in the artillery branch. He did not serve in combat, nor did he have foreign service. VA has attempted to obtain copies of the Veteran's service treatment records and service personnel records on multiple occasions. In July 2008 and February 2013, the National Personnel Records Center (NPRC) informed VA that the Veteran's records had been destroyed by fire and were unavailable. NPRC informed the Veteran of this same fact in an October 2008 letter, and specifically indicated that the Veteran's complete personnel and medical records could not be reconstructed. VA asked the Veteran for additional information so that a search of alternate records, such as sick call reports could be conducted. The Veteran informed VA that he never went to sick call during service, so that alternate records would not exist. VA has a heightened obligation to search for alternate medical records when service medical records are not available and must also provide an explanation to the veteran regarding VA's inability to obtain his service medical records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Veteran's service personnel records and service treatment records have been destroyed by fire. The only service record available is a copy of the Veteran's DD 214. By the Veteran's own admission, alternate records such as sick call records do not exist. Accordingly, VA has exhausted all avenues to obtain copies of the Veteran's service records, and must adjudicate the appeal with the available evidence. A. Hearing Loss For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a current "disability" for the purposes of service connection. 38 C.F.R. § 3.385. "[I]mpaired 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 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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Other organic diseases of the nervous system may be presumed to have been incurred during active military service if they manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a). M21-1MR III.iv.4.B.12.a. In this respect, there is no medical evidence showing that a hearing loss disability became manifest to a degree of 10 percent within the first year of the Veteran's separation from active duty in March 1955. Accordingly, presumptive service connection is not warranted under on a presumptive basis. The Veteran claims service connection for hearing loss. He claims that he was exposed to acoustic trauma in the form of the noise of artillery weapons fire during service and that this is the cause of a current hearing loss disability. At the August 2012 hearing he testified that he did not have any significant noise exposure in the half a century since he separated from service. The Veteran's DD 214 does confirm that he served in an artillery unit in service. Accordingly, his assertions of noise exposure are credible. In August 2008, a VA audiology examination of the Veteran was conducted. He reported a history of exposure to artillery and tank noise during service. He denied a history of occupational and recreational noise exposure subsequent to service. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 50 55 65 LEFT 35 45 65 70 70 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 72 percent in the left ear. These test result reveal the presence of a current hearing loss disability. 38 C.F.R. § 3.385. The diagnosis was bilateral sensorineural hearing loss. No opinion was expressed as to the etiology of the Veteran's hearing loss disability. In January 2013 another VA audiology examination of the Veteran was conducted. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 65 70 70 LEFT 45 55 60 65 70 Speech audiometry revealed speech recognition ability of 56 percent in the right ear and of 50 percent in the left ear. Again, these test result reveal the presence of a current hearing loss disability. 38 C.F.R. § 3.385. The examiner reviewed the evidence of record and stated that a medical opinion regarding the etiology of the Veteran's hearing loss could not be provided without resort to speculation. The examiner noted that there was no evidence of hearing loss until the 2008 VA examination report and the Veteran's "hearing loss is most likely the result of presbycusis (age related)." The Veteran was exposed to artillery and tank noise during service. He has a current hearing loss disability. By his own testimony at the August 2012 hearing he could not identify the date of the onset of symptoms of hearing loss. He has not provided any information to obtain any evidence in the period of time between his separation from service in 1955 and the 2008 VA examination which is the first evidence of a hearing loss disability. There is no credible evidence linking the current hearing loss disability to service or the noise exposure experienced during service. The 2013 Compensation and Pension examination report indicates that the Veteran hearing loss is most likely age related. The preponderance of the evidence is against the claim for service connection for bilateral hearing loss; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Eye Disabilities The Veteran claims entitlement to service connection for various eye disabilities. He asserts that during service the muzzle blast of artillery fire resulted in burn type injuries to his eyes which are the cause of his current eye disabilities. Again, he did serve in an artillery unit during service. However he has offered no evidence showing any complaints of, or treatment for, eye disabilities for the period from 1955 until 2007. A series of private medical records dated in 2007 and 2008 reveal that the Veteran's eyes were regularly evaluated and that he was prescribed medication to treat glaucoma. VA treatment records dating from March 2008 to the present reveal that he transferred his eye treatment to the VA medical system at this time. In August 2008 a VA eye Compensation and Pension examination of the Veteran was conducted. The Veteran reported a medical history of bilateral glaucoma dating from approximately 2007; and cataract surgery in 2005. He also reported symptoms of bilateral eye burning, stinging, and blurring of vision. After full examination the diagnosis was bilateral primary open angle glaucoma of each eye with reduced visual field. No etiology opinion was expressed. In January 2013 another VA eye Compensation and Pension examination of the Veteran was conducted. The Veteran reported a history of burn injuries to his eyes from an artillery muzzle blast during service. After full examination the diagnosis was: advanced open angle glaucoma of both eyes; pseudophakia of both eyes; and, left eye homonymous heminopsia. The examiner reviewed the evidence of record and considered the Veteran's report of blast and burn injury to his eyes during service. The examiner's medical opinion was that it was less likely than not that the Veteran's current eye disabilities were due to his military service. The examiner stated that the type of injury that would result in the current eye disabilities would result in physical findings which were not present on current examination. The examiner indicated that cataracts due to trauma develop immediately after injury not 50 years later; since the Veteran did not require cataract surgery until his was approximately 72 years old, they were age related. The Veteran's glaucoma was related to cataract surgery or corticosteroid response, and the Veteran's left homonymous visual field defect was related to a cerebrovascular accident (stroke) that the Veteran suffered in 2012. The Veteran has currently diagnosed eye disabilities. He reports a blast/burn injury to the eyes during service. However, the credible evidence of record indicates that the current eye disabilities are not related to service or the reported in-service injury. There is no credible evidence linking any current eye disability, including glaucoma, to service or the claimed injury during service. The preponderance of the evidence is against the claim for service connection for an eye disability, to include glaucoma; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. Psychiatric Disability including PTSD The Veteran claims service connection for PTSD. Claims for service connection for psychiatric disorders, including PTSD, may encompass claims for service connection for all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). There are VA treatment records revealing diagnoses of depression. Accordingly, the Board will consider all psychiatric disabilities as being on appeal. Again, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Psychoses may be presumed to have been incurred during active military service if they become manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. There is no evidence showing that the Veteran has ever been diagnosed with a psychosis; accordingly service connection under these provisions is unwarranted. 38 C.F.R. § 3.384. In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see also Pond v. West, 12 Vet. App. 341, 345 (2000). Service connection for post traumatic stress disorder requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed in-service stressor occurred; and, (3) a link established by medical evidence, between current symptoms and an in-service stressor. If the claimant did not engage in combat with the enemy or if the claimed stressors are not related to combat, then the claimant's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). See Fossie v. West, 12 Vet. App. 1, 6 (1998), wherein the Court stated, "If the veteran engaged in combat, his lay testimony regarding stressors will be accepted as conclusive evidence of the presence of in-service stressors. 38 U.S.C. 1154(b); 38 C.F.R. § 3.304(f). If, however, the veteran was not engaged in combat, he must introduce corroborative evidence of his claimed in-service stressors." In August 2008 a VA psychiatric Compensation and Pension examination of the Veteran was conducted. The Veteran reported a history of witnessing a soldier in his artillery unit killed during artillery firing exercise. He reported that the soldier was killed by the muzzle blast. He reported symptoms of nightmares of the soldier's death. He also reported being bothered by unexpected loud noises and some sleep disturbance. The examiner indicated a diagnosis of PTSD was warranted based upon the reported stressor. The Veteran has reported the same account of his non-combat in-service stressor in several written statements and in his 2012 hearing testimony. His claimed stressor is that: during artillery firing exercise in 1954, a soldier in another tank left the tank and was killed when a fired artillery shell detonated prematurely. In support of this he has submitted multiple statements from C.L. a service buddy, which recount essentially the same story. The Veteran has submitted lay statements from others who knew him after service and assert that he returned from service with changes in behavior, but none of these other lay statements are from someone who would have witnessed and corroborated the alleged in-service stressor. The Veteran has asserted that the incorrect unit is indicated on his discharge papers. His DD 214 indicates he served in Battery A, 73rd Field Artillery Battalion. However, he claims he served in the 91st Field Artillery Battalion. He has demanded his records be corrected. A February 2011 letter from the Board of Correction for Military Records indicates that the requested correction cannot be made based upon the Veteran's assertions and his statements. This finding is binding on the Board. VA did contact the NPRC which searched the records of the Veteran's unit records for the appropriate period of time and was unable to find any documentation of the reported injury or fatality. Specifically, the May 2009 response from NPRC actually indicates that the records of both units in question were researched and that neither revealed the claimed non-combat fatality that the Veteran alleges as his in-service stressor. The Veteran's VA treatment records have been reviewed and there is no indication in any of the other VA treatment records of any diagnosis of PTSD. Rather, VA psychiatric treatment records, such as a January 2012 note, indicate that the Veteran is diagnosed with depression and dementia which is being treated with medication. The record reveals that the Veteran has a medical history including a stroke and he has a diagnosis of dementia. Accordingly, his assertions of non-combat stressors he claims he experienced over half a century ago may not be entirely reliable. The Veteran did not engage in combat; accordingly credible supporting evidence showing that his claimed noncombat in-service stressor actually occurred is required for him to prevail. See Cohen v. Brown, 10 Vet. App. 128, (1997); Moreau, 9 Vet. App. at 394-95; Doran v. Brown, 6 Vet. App. 283, 290 (1994). Under such circumstances, the Veteran's lay testimony regarding the stressor is insufficient, standing alone, to establish service connection. See Moreau, 9 Vet. App. at 395; Doran, supra. While he has submitted lay statements from a service buddy which recount the same stressor story as the Veteran's, the available service department records specifically contradict his assertions of witness a fatality during artillery fire exercises. The Veteran has current diagnoses of PTSD from the 2008 Compensation and Pension examination. However, this diagnosis is based solely on the Veteran's accounts of his single non-combat stressor . As discussed above, after considerable efforts at development, there is no credible supporting evidence that the alleged stressor occurred. To the extent that there are diagnoses of psychiatric disabilities other than PTSD, specifically depression and dementia, there is no credible evidence linking those psychiatric disabilities to service. The preponderance of the evidence is against the claim for service connection for a psychiatric disability, to include PTSD; the benefit-of-the-doubt rule does not apply and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for an eye disability, to include glaucoma, is denied. Service connection for a psychiatric disability, to included PTSD, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs