Citation Nr: 1334787	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  10-20 380	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for a bilateral hearing loss disability.

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

3.  Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include depressive disorder.


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

A. Chance, Associate Counsel


INTRODUCTION

The Veteran served on active duty with the United States Navy from March 1970 to April 1971, to include a tour of duty in the Republic of Vietnam.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a August 2008 rating decision by the Montgomery, Alabama, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for a bilateral hearing loss disability and assigned an initial rating of 10 percent and denied service connection for posttraumatic stress disorder (PTSD). 

The Board has included an issue of service connection for a disability characterized as "an acquired psychiatric disorder, other than PTSD, to include depressive disorder" in order to include all possible disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled).

The Veteran testified before the undersigned Veterans Law Judge at Board hearing held via video teleconference in January 2013. A transcript of the hearing is associated with the virtual claims file.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file has been completed to ensure a total review of the evidence.



FINDINGS OF FACT

1.  The Veteran's right hearing acuity has not been shown to be worse than Level IV at any time.

2.  The Veteran's left hearing acuity has not been shown to be worse than Level III at any time.

3.  The rating criteria for hearing loss disabilities reasonably describe the Veteran's disability level and symptomatology, and there are no unusual or exceptional factors that render the application of the schedular criteria standards impractical.

4.  The Veteran has not had a diagnosis of PTSD related to an in-service stressor, made in accordance with the DSM-IV criteria at any time during the pendency of this claim.

5.  The Veteran has a current diagnosis of depressive disorder that has not been related by competent evidence to his period of military service.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 10 percent for the Veteran's bilateral hearing loss disability have not been met or approximated. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.385, 4.85, 4.86, Diagnostic Code 6100 (2013).

2.  Application of the extraschedular rating provisions with respect to the Veteran's hearing loss disability is not warranted in this case. 38 C.F.R. § 3.321(b) (2013).

3.  PTSD was not incurred in or aggravated by service, and the criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).

4.  A depressive disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 U.S.C.A. §§ 3.102, 3.303, (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 

As for the Veteran's bilateral hearing loss claim, this appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for a bilateral hearing loss disability. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify with respect to the bilateral hearing loss claim is therefore required.

Regarding the Veteran's claim for service connection for PTSD, under VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. See also 38 C.F.R. § 3.159(b)(1).

A VCAA letter dated in January 2008 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  The Veteran was advised of the evidence necessary to substantiate a claim for service connection and that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  The January 2008 letter also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). Therefore, the Board finds that the duty to notify regarding the Veteran's PTSD claim has been satisfied.

VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

In the instant case, the claims file contains service treatment records, reports of VA post-service outpatient treatment from the Birmingham VAMC from June 2008 through April 2012, reports of VA examinations from March 2012 and June 2008, and a private audiology examination conducted in November 2012. The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); See also 38 U.S.C.A. § 5103A(a)-(c); 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159(c)(2).

Further, VA provided the Veteran audiology and PTSD examinations in March 2012 and June 2008 and obtained medical opinions as to the diagnosis and severity of the Veteran's hearing loss and psychiatric disabilities. The record reflects, that the Veteran has challenged the adequacy of the June 2008 PTSD examination as being inadequate for rating purposes in a 2008 notice of disagreement. Specifically, the Veteran alleges that the examiner did not ask thorough questions regarding his alleged PTSD stressors and symptomatology. However, the Board finds that there is no basis or indication that the examination was inadequate. The record reflects that the June 2008 VA examiner was a clinical psychologist that expressed familiarity with the Veteran's disability picture, reviewed the contents of the Veteran's claims file, conducted required examinations, answered all the questions posed in the examination requests, and rendered an opinion that was well-reasoned and consistent with the evidence of record. Therefore, the all of the VA examinations conducted are deemed to be adequate for rating purposes.

As noted above, the Veteran testified at a hearing in January 2013 before the undersigned Veterans Law Judge (VLJ). During the Board hearing, the Veteran was assisted by an accredited representative from the Alabama Department of Veteran Affairs. The representative and the VLJ asked questions to ascertain the current extent and severity of his service-connected bilateral hearing loss disability and his alleged PTSD disability. The hearing focused on the elements necessary to substantiate the claims for an initial increased disability rating and for service connection, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claims. The Veteran has not contended that the VLJ did not comply with 38 C.F.R. § 3.103(c) and he has not contended that he was prejudiced in any way in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claim has been obtained. Accordingly, the Board will address the merits of the claims.

Law and Regulations- Increased Rating for Bilateral Hearing Loss

Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85.

To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Examinations are conducted using the controlled speech discrimination tests (Maryland CNC), together with the results of the puretone audiometry test. The horizontal lines in table VI, referenced in 38 C.F.R. § 4.85, represent nine categories of percent of discrimination based upon the controlled speech discrimination test. The vertical columns in table VI represent nine categories of decibel loss based upon the puretone audiometry test. The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss; thus, for example, with a percent of discrimination of 70 and average puretone decibel loss of 64, the numeric designation is V for one ear. The same procedure will be followed for the other ear. The numeric designations are then applied to table VII, also referenced in 38 C.F.R. § 4.85, to determine the veteran's disability rating.

When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. In the latter instance, that numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86(a) and (b) (exceptional patterns of hearing impairment).

Analysis- Increased Rating for a Bilateral Hearing Loss disability

The Veteran contends that his 10 percent disability rating initially assigned for his bilateral hearing loss disability does not adequately compensate for his current level of severity. During his January 2013 Board hearing, he credibly testified that he has to wear hearing aid devices to assist with his hearing capability and that the adaptive hearing headphones issued by the VA for television usage are impractical when accompanied by others in conversation because he is not able to hear competing noise when wearing them. Additionally, he alleged that his hearing disability has affected his employment in that he was removed from street duty as a police officer and placed on desk duty.

While the Veteran is competent to report his current symptomatology as lay evidence, he is not competent to offer the severity of his disability. He lacks the specialized training and skills to do so, which is provided through medical evidence.

Review of the Veteran's service treatment records reveal that two enlistment examinations conducted in October 1968 and December 1969 both indicated 15/15 whisper voice test results. Furthermore, a separation examination conducted in April 1971 indicated a 15/15 whisper voice test result as well. 

The Veteran was afforded an initial VA audiology examination in June 2008 to determine the existence of a current hearing loss disability and, if present, the etiology and severity of such. The VA examiner, a licensed audiologist, reviewed the Veteran's claims file and his medical history. She performed the required puretone threshold and Maryland CNC testing and the results were as follows: (in decibels)


500Hz
1000Hz
2000Hz
3000Hz
4000Hz
Left
20
25
40
75
95
Right
55
55
65
75
80

The speech recognition scores were 92% and 84% in the left and right ears, respectively. The examiner diagnosed moderate to severe mixed hearing loss in the right ear and a mild to profound sensorineural hearing loss in the left ear and opined that the hearing loss disability was at least as likely as not related to the Veteran's military service because he was exposed to loud noise and took medication for malaria that was potentially ototoxic, as a result of his tour in the Republic of Vietnam. 

Unfortunately, the RO incorrectly assigned a 10 percent disability rating for the June 2008 hearing loss diagnosis. The applicable VA regulations instruct the assigning agency to only consider the "pure tone average" of the 1000, 2000, 3000, and 4000 Hz frequencies when determining Roman numeral designation for hearing impairment from Table VI or Table VIa. See 38 C.F.R. § 4.85(d). Additionally, the regulations only permit use of Table Via, which only consider the puretone threshold average when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. See 38 C.F.R. § 4.85(c). Although the June 2008 VA examination results reveal speech discrimination scores and do not indicate that the use of such was inappropriate, it appears that the RO only considered the puretone threshold averages and used Table Via instead of Table VI. Additionally, the RO considered the average of the 500Hz frequency as well. The RO assigned the right ear a Roman numeral V and the left ear, a Roman numeral IV. When intersecting row IV, the better ear, with column V, the poorer ear, a 10 percent evaluation was derived and assigned.

As speech discrimination scores were not certified as inappropriate and no exceptional patterns of hearing loss were present from 38 C.F.R. § 4.86(a) and (b), the proper analysis should have consisted of intersecting the puretone threshold average with the speech discrimination score separately for both ears using Table VI. That would have yielded a Roman numeral III for the right ear and a Roman numeral I for the left ear. Next, using Table VII, intersect the Roman numerals for both ears. This yields a 0 percent evaluation. 

Review of the Veteran's post-service VA treatment records dated from June 2008 to April 2012 reveals ongoing treatment for hearing evaluations and a fitting and assignment of hearing aid devices. These records do not show audiometric findings that would support an increased evaluation rating.

The Veteran was afforded an additional VA audiology examination in April 2012, subsequent to filing a notice of disagreement with the initial rating evaluation assigned. Again, the VA examiner, a licensed audiologist, reviewed the Veteran's claims file and his medical history. She performed the required puretone threshold and Maryland CNC testing and the results were as follows: (in decibels)


500Hz
1000Hz
2000Hz
3000Hz
4000Hz
Left
40
50
55
85
85
Right
50
50
55
70
75

The speech recognition scores were 84% and 80% in the left and right ears, respectively. When properly analyzed using Table VI, the left ear is assigned a Roman numeral III and the right ear is assigned an IV. After intersecting the two Roman numerals in Table VII, a 10 percent evaluation was derived. Therefore, the Veteran was not technically entitled to a compensable disability rating for his bilateral hearing loss disability until April 2, 2012- the date of the second VA audiology examination.  The Board, however, sees no reason to revisit that decision at this juncture.  

Most recently, the Veteran submitted private medical evidence consisting of an audiology examination conducted in November 2012 by Dr. K, a licensed audiologist. She performed the required puretone threshold and Maryland CNC testing and the results were as follows: (in decibels)


500Hz
1000Hz
2000Hz
3000Hz
4000Hz
Left
40
45
45
80
70
Right
55
45
40
55
55

The speech recognition scores were 88% and 92% in the left and right ears, respectively. Dr. K noted that the word recognition scores were excellent for the right ear and good for the left ear. She further noted that the Veteran's speech, language and cognitive abilities were normal. When the puretone threshold averages and the CNC results are properly analyzed using Table VI, the left ear is assigned a Roman numeral III and the right ear is assigned a Roman numeral I. After intersecting the two Roman numerals in Table VII, a 0 percent evaluation is derived. Therefore, even the private medical evidence submitted by the Veteran is negative evidence against his claim for an initial increased rating in excess of 10 percent. 

In weighing the competent evidence of record, the Board notes that both VA examinations were based upon a review of the Veteran's claims file, including the service treatment records, post-service outpatient treatment records, and a thorough examination of the Veteran's hearing acuity through the required testing conducted by a licensed audiologist. Furthermore, the Board notes that the private medical evidence submitted by the Veteran indicated that Dr. K was also a licensed audiologist that conducted the required testing to determine the existence and severity of the Veteran's hearing loss disability. In contrast, the Veteran's lay testimony was only offered for the purpose of expressing his belief that his disability picture was more severe than the 10 percent evaluation rating accounted for and noted the difficulty in using the adaptive devices around surrounding conversations and noises. Lastly, the Veteran lacks the specialized training, knowledge, and skill that the licensed audiologists possess to analyze the results of audiology testing and to determine the severity of any present disability. For the reasons stated herein, the Board finds that the Veteran's broad allegations that he is entitled to a higher disability rating because of the worsening of his hearing acuity are consistent with the objective record as a whole.  Consequently, the VA examinations and the November 2012 private examination are afforded greater probative weight than the Veteran's lay testimony evidence.

Therefore, the Board concludes that the symptoms and manifestations of the Veteran's bilateral hearing loss disability as shown during the VA examinations and the November 2012 private examination, as well as based on statement made by the Veteran, do not demonstrate a degree of disability that warrants assignment of a rating greater than 10 percent at any time. See 38 C.F.R. § 4.85 and § 4.86. 

Furthermore, the symptoms and manifestations shown throughout the Veteran's treatment are consistent throughout the pendency of this appeal. For this reason, staged ratings are not applicable. See Hart, 21 Vet. App. at 505.

Extraschedular Consideration

The Board has considered whether referral for extraschedular consideration is indicated. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008).

First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. 

If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116.

If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. 

Here, the schedular criteria are adequate. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. Hence, the rating criteria contemplate the Veteran's symptomatology. This Veteran does not demonstrate an exceptional pattern of hearing loss which requires adjustment of the basic formula. 38 C.F.R. § 4.86. The functional effects of the Veteran's hearing loss are not so severe as to render the schedular criteria inapplicable. See generally Martinak v. Nicholson, 21 Vet. App. 447 (2007).

The preponderance of the evidence is against the Veteran's claim for increase. Accordingly, the appeal in this matter must be denied.

Law and Regulations- Service Connection of PTSD

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet.App. 247, 253 (1999). 

Service connection for PTSD requires medical evidence diagnosing the condition; 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). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f).

A veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against a veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appealed claims. See Timberlake v. Gober, 14 Vet.App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. 

Analysis- Service connection of PTSD

The Veteran contends that while he was stationed in the Republic of Vietnam, he was under enemy fire multiple times during combat. He specifically alleges that the ship that he was aboard was hit and the explosion created a 20 foot hole. The Veteran credibly testified during his January 2013 Board hearing that one of the other crewmembers shot himself in the back of his head and survived, he could not be carried out by MedEvac because an attack had just taken place. The Veteran had to endure the crewmember screaming and crying all night long for his mother. Having endured these events, the Veteran believes that he is entitled to service connection for PTSD.

As noted above, service connection for PTSD requires medical evidence diagnosing the condition; 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). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f).

In the present case, the Veteran's DD-214 shows that he served in Vietnam and was awarded a Combat Action Ribbon. Therefore, exposure to combat-related stress is conceded. Thus, this case turns squarely upon whether the Veteran has a diagnosis of PTSD made in accordance with the DSM-IV that has been related by competent evidence to his in-service combat stressors.

A thorough review of the Veteran's service treatment records and post-service VA treatment records show no evidence of a diagnosis of posttraumatic stress disorder nor any treatment for such. 

The Veteran was afforded VA PTSD examinations in June 2008 and April 2012. Neither examiner rendered a diagnosis of PTSD as consistent with the applicable governing regulations and in accordance with the DSM-IV criteria, which focuses on 5 explicit axes and six separate criteria (A through F) for the diagnosis of PTSD. Specifically, the June 2008 examiner, a licensed psychologist, diagnosed the Veteran with depression, which was in partial remission, indicating that the Veteran's symptomatology did not rise to the level required to satisfy the criteria for a clinical diagnosis of PTSD. The examination report explained that the Veteran was currently taking antidepressant medication on a daily basis, and that he was dealing with some situational depression related to caring for his father who is suffering from Alzheimer's disease. The examiner further noted that the Veteran reported having a good marriage, enjoyed the sport of bowling a lot, socialized with his wife, and brother and was active in his church. The June 2008 examination revealed mild impairment in psychosocial functioning, normal memory, infrequent nightmares about Vietnam experiences and no significant distress of social or occupational impairment. The Veteran's GAF score was reported as 82. 

The RO denied service connection for PTSD in an August 2008 rating decision and the Veteran filed a notice of disagreement in November 2008. In an attempt to give the Veteran an additional opportunity to secure a clinical diagnosis of PTSD, VA afforded him another examination in April 2012 with a different examiner.

 Although the initial purpose of this examination was to obtain a diagnosis, it again only provided a diagnosis of depressive disorder due to the fact that the Veteran's symptomatology did not meet the criteria of a PTSD diagnosis in accordance with the DSM-IV. Specifically, the examiner noted that the Veteran reported mild symptoms of depression that seem to have been more significant in the past. He explained that the depression is currently well managed by the antidepressant medication and that it does not cause any significant impairment in social or occupational functioning- requirement of criteria F of the DSM-IV. His recorded GAF score was 80 and his work performance was noted as "alright." The Veteran reported being married for 18 years, having some childhood friends, and participation on a bowling league. The examination report indicated no panic attacks or suicide attempts, occasional nightmares (although none lately), good memory, mild forgetfulness, depressed mood, and inability to watch Vietnam movies because they trigger memories. The examiner opined that the symptoms reported by the Veteran were not of the nature and severity that would rise to the level of a PTSD diagnosis consistent with the DSM-IV. Specifically, the Veteran did not report any clinically significant distress or impairment in social, occupational or other important areas of functioning sufficient to satisfy the F criteria for a diagnosis of PTSD and did not show the required level of persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness required by criteria C of the DSM-IV.

In a final attempt to give the Veteran an opportunity to secure a clinical diagnosis of PTSD, the undersigned VLJ allowed for the record to be held open for 60 days after the January 2013 Board hearing to afford the Veteran adequate time to undergo a private evaluation for PTSD. The Veteran never submitted private medical evidence demonstrating that such evaluation took place.

As for the Veteran's lay statements, although he has contended that he experiences PTSD symptoms, he is not, as a layperson, competent to give a medical opinion on diagnosis, etiology, or aggravation of a medical condition. The Board has the authority to discount the weight and probative value of evidence in light of its inherent characteristics and its relationship to other items of evidence. See Layno v. Brown, 6 Vet. App. 465, 471 (1994) (finding that competent evidence is limited to that which the witness has actually observed, and is within the realm of his personal knowledge); See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In weighing the competent evidence of record, the Board notes that both VA examinations were based upon a review of the Veteran's claims file, including the service treatment records and post-service treatment records, and a thorough examination of the Veteran's mental state. Both examinations were conducted specifically to determine an existence of PTSD in accordance with the DSM-IV and specific to the Veteran's conceded combat-related stressors. Unfortunately, the examination revealed that the Veteran did not meet the required criteria for the examiner to render a clinical diagnosis of PTSD. 

As explained above, the most persuasive and competent evidence of record does not reflect that the Veteran has a clinical diagnosis of PTSD in accordance with the criteria listed in the DSM-IV. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). There is no evidence within the claims file of any such diagnosis of PTSD in accordance with the DSM-IV criteria during the appellate period. As a consequence, the claim for service connection for PTSD therefore fails on the basis that all three elements for such a showing under 38 C.F.R. § 3.304(f), have not been met. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b). The claim for service connection for PTSD must be denied.

Law and Regulations- Service connection of an acquired psychiatric disorder, to include depressive disorder

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a).

Finally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998).

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.

Analysis- Service connection of depressive disorder

As noted above, to be successful in a claim of direct service connection there is generally required three elements: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 

In the present case, the Veteran has a current diagnosis of depressive disorder that is noted to be in partial remission. This diagnosis was originally rendered during the June 2008 PTSD examination and later reconfirmed in the April 2012 VA PTSD examination. Thus, a current disability is well established. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).

In support of his claim for service connection, the Veteran offers the same lay testimony evidence referred to above in his service connection claim for PTSD. Again, he alleges that he was under enemy fire multiple times during combat, that the ship that he was aboard was hit and the explosion created a 20 foot hole, and that one of the other crewmembers shot himself in the back of his head and survived, he could not be carried out by MedEvac because an attack had just taken place. The Veteran had to endure the crewmember screaming and crying all night long for his mother. The Veteran's DD-214 shows that he served in Vietnam and was awarded a Combat Action Ribbon. Therefore, in light of the Veteran's combat experience, exposure to combat-related stress is conceded. The in-service injury requirement of service connection is therefore satisfied.

Thus, this case turns upon whether there is a nexus or relationship between the Veteran's current depressive disorder disability and military service, including the combat-related events that he endured. During the Veteran's April 2012 VA PTSD examination, the examiner-a licensed psychologist, opined that there was no positive evidence that the current diagnosis of mild depressive disorder was related to his military service. Furthermore, the June 2008 VA examiner- a licensed psychologist, noted that the Veteran was dealing with some situational depression that was specifically related to caring for his father with whom he had a strained relationship with and who was suffering from Alzheimer's disease. 

The Veteran has offered no other medical evidence or opinions regarding whether his current depressive disorder disability is related to service. The Board has, however, considered his contentions that it is so related. In that regard, the Board acknowledges that the Veteran can attest to observed symptoms and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). That said, there is no evidence of record that the Veteran has any medical expertise that would qualify him to provide an opinion regarding the etiology of his depression. Therefore, the Board finds the medical opinions provided by the VA examiners, who are licensed psychologists and skilled in the practice of diagnosing psychiatric disorders, to be highly probative and clearly outweighs the lay evidence provided by the Veteran.

For the reasons stated above, the Board concludes that the weight of the evidence is against a finding that there is a nexus between the current depressive disorder disability and the Veteran's active military service. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2012).


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ORDER

Entitlement to an initial disability rating in excess of 10 percent for a bilateral hearing loss disability is denied.

Entitlement to service connection for PTSD is denied.

Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include depressive disorder is denied.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs