Citation Nr: 1343265 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 09-42 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from October 1994 to September 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In January 2010, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. During the pendency of the appeal, a January 2013 rating decision granted service connection for depressive disorder with anxiety, a low back disability, and tinnitus. An April 2013 rating decision granted service connection for headaches, claimed as residuals of a head injury. As the appeals for service connection have been granted, these issues are no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDINGS OF FACT 1. The most probative evidence of record indicates the Veteran does not suffer from PTSD. 2. The most probative evidence of record indicates that a hearing loss disability for VA compensation purposes has not been shown at any time during the appeal. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5107(West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent in February 2008. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues to the Veteran, and relevant testimony concerning events in service, treatment history, and symptomatology was elicited. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records and service personnel records have been obtained, as well as available private and VA treatment records. Pursuant to the Board's remand instructions, the Appeals Management Center (AMC) made numerous attempts to obtain treatment records for the Veteran from providers who have treated him for any psychiatric disorder and hearing loss, to include all available audiology examination reports from Vitex Corporation in Franklin, New Hampshire. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. The March 2010 Board remand also requested that the Veteran be afforded VA examinations pertaining to the claims on appeal. Those examinations were conducted in September 2010. The remand requested that the psychiatric examination be conducted by a psychiatrist, and the report of the psychiatric examination reflects that it was conducted by a doctorate level psychologist. However, the examination report adequately reported the Veteran's clinical history and the examination itself was sufficiently thorough, in-depth, and extensive in nature so as to provide an adequate basis, when taken together with the evidence as a whole, for adjudicating the claim for service connection for PTSD. Moreover, the psychologist has appropriate expertise in the field of mental health to permit a valid and knowledgeable assessment. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) ("VA satisfied its duty to assist when it provided a medical examination conducted by one able to provide competent medical evidence."); see also 38 C.F.R. § 3.159(a)(1) (2013) (noting that "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions"). Accordingly, the Board finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Additionally, with regards to the Veteran's claim for service connection for hearing loss, the Veteran's representative argued in the October 2013 appellate brief that an additional VA examination was required to accurately assess the current level of the Veteran's hearing loss. Specifically, the representative argued that the September 2010 VA examination that evaluated the Veteran's hearing loss is too old to adequately rate the Veteran's disability. The Board notes that the "mere passage of time" does not render an old examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). In this case, the Board finds that the representative did not specifically assert that there was evidence suggesting that the Veteran's hearing loss had worsened, nor did the representative actually assert that there had been such a worsening. Instead, the representative asserted that a significant period of time had passed since the last VA examination. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Bilateral Hearing Loss The Veteran contends that he developed bilateral hearing loss in service as a result of enduring noise exposure during the performance of his duties as a field artillery cannoneer. Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2013). For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the 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. See 38 C.F.R. § 3.385 (2013). The Veteran's DD Form 214 confirms that his military occupational specialty was as a field artillery cannoneer. Service treatment records reflect that his hearing was evaluated as normal by a reference audiogram conducted in October 1994. On two hearing conservation data reports dated two weeks apart in July 1995, audiological testing revealed that the Veteran's hearing was within normal limits bilaterally. At a January 1997 in-service examination for motor vehicle operators, his hearing was noted to be within normal limits bilaterally. On a May 1998 report of medical history, the Veteran indicated that he did not know if he had hearing loss, and also indicated that he did not have any ear trouble. At his May 1998 service separation examination, his ears were evaluated as normal, and an audiogram again reflected normal hearing bilaterally. Following his discharge from service, the Veteran denied ear problems in a February 2008 VA treatment record. In a later February 2008 statement, he asserted that he has had problems with hearing loss since being a gunner in service. In a March 2008 VA treatment record, the Veteran reported a history of hearing loss. At his January 2010 hearing, the Veteran testified that his job in service entailed ongoing noise exposure with no ear protection. He also acknowledged that his post-service occupation of working in a factory does involve noise exposure, but he noted that ear protection is required for his job and that his hearing is evaluated every year through his employer. The first question in any claim for service connection is whether a current disability exists. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Thus, while the Veteran experienced noise exposure in service, the most probative evidence is against a finding that he suffers from a hearing loss disability for VA purposes. In this regard, an annual audiology examination from Vitex Corporation, dated in July 2009, showed audiometric results from testing in November 2008 and July 2009 at 500 through 8000 Hertz. As relevant for the purposes of 38 C.F.R. § 3.385, for the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz, the left ear revealed no puretone threshold greater than 20 decibels. For the right ear, a 25 decibel loss was noted at 4000 Hertz on both tests, with the remaining frequencies of 500 through 3000 Hertz being 5 or 10 decibels. The assessment was hearing within normal range for the right ear and moderate hearing loss at some high frequencies in the left ear. On VA examination in September 2010, the results of puretone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz on the right were 15, 20, 20, 20, and 35, and on the left were 15, 20, 20, 25, and 30. His speech recognition score was 94 percent in the right ear and 96 percent in the left ear. The examiner diagnosed normal hearing in the right ear from 250 through 3000 Hertz with mild sensorineural hearing loss present at 4000 to 6000 Hertz recovering at 8000 Hertz. Similarly, in the left ear, hearing sensitivity was also within normal limits from 250 through 3000 Hertz with mild sensorineural hearing loss present at 4000 to 6000 Hertz recovering at 8000 Hertz. In this case, while the evidence of record shows some hearing loss at frequencies above 3000 Hertz during the appeal period, the hearing loss is not shown to rise to the level of a hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. Thus, the findings do not satisfy the criteria for establishing service connection for bilateral hearing loss disability. 38 C.F.R. § 3.385. Given the lack of competent diagnostic evidence showing that he has a hearing loss disability in either ear at present or at any time during the period on appeal, as that term is defined in 38 C.F.R. § 3.385, service connection must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the Veteran's lay assertions as to the presence of hearing loss. Although the Veteran is competent to state that he subjectively experiences hearing loss, there is no indication that the Veteran has specialized training in diagnosing audiological disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of sensorineural hearing loss and whether such rises to a disability requires medical testing to determine. On this point, the Board accords greater probative weight to the audiological testing conducted during the course of the claim than to the Veteran's lay assertions. As the Veteran has not established that he suffers from a hearing loss disability pursuant to 38 C.F.R. § 3.385, service connection cannot be established and no further inquiry as to the other elements of service connection is required. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). PTSD The Veteran asserts that he developed PTSD as a result of learning in service about the death of his brother in October 1995. The record reflects that in October 1995, while stationed in Okinawa, Japan, the Veteran did receive a notification message from the American Red Cross informing him that his brother had died and requesting that he return home. The Veteran also contends that, shortly after his brother's death, he was placed on funeral/burial detail and had to bury other Veterans. He reports that he was stationed with Inspector-Instructor, Company B, in Bedford, New Hampshire from November 8, 1995 to January 5, 1996. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (under the criteria of the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). Service treatment records reflect that in February 1996, the Veteran underwent a psychiatric consultation after expressing suicidal thoughts, and he was referred to a chaplain for bereavement and grief counseling. Later in February 1996, he was seen for a follow-up psychiatric consultation, and it was noted that he was no longer suicidal and that he did not have current feelings of depression. At a January 1997 in-service examination for motor vehicle operators, he denied any history of psychiatric disorder or any other nervous disorder. On a May 1998 report of medical history, the Veteran indicated that he had never suffered from depression or excessive worry or nervous trouble of any sort. At his May 1998 service separation examination, his psychiatric state was evaluated as normal. Thus, there is no diagnosis of PTSD documented during the Veteran's military service. As noted above, the first question in any claim for service connection is whether a current disability exists. See 38 U.S.C.A. §§ 1110; 1131; Degmetich, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes). Following his discharge from service, VA treatment records dated from February 2008 through September 2009 reflect ongoing treatment for anxiety and depression related to a number of issues, including ongoing bereavement over his brother's death, lack of closure regarding how his brother died (it was initially ruled a suicide, but murder is suspected), custody issues involving his own son, and the loss of his job. In March 2008, the Veteran got a positive score on a four-question PTSD screening test based on symptoms in the past month. On the same date in March 2008, the Veteran described his psychiatric difficulties in the military, including a suicide attempt and hospitalization, following the death of his brother and shortly thereafter being placed on funeral/burial detail, and a VA clinical psychologist rendered a diagnostic impression of anxiety disorder not otherwise specified, with a note to rule out PTSD, and depressive disorder not otherwise specified. Later in March 2008, the Veteran complained of anxiety and nightmares related to his brother's death, and he reported that such symptoms began following his brother's death. It was noted that he had been hospitalized in 1997 for a suicide attempt. On that occasion in March 2008, a VA clinical social worker diagnosed the Veteran with an initial DSM-IV diagnosis of adjustment disorder with mixed anxiety and depression. On VA mental health disorders examination in September 2010, the examiner noted ongoing psychiatric treatment since 2008 due to anxiety and depression associated with the death of his brother. The Veteran denied being in combat during service. Following an examination of the Veteran, the examiner diagnosed depressive disorder, not otherwise specified, secondary to chronic bereavement of his brother's death. As noted in the Introduction, service connection has already been established for depressive disorder to include anxiety. The question here is whether the Veteran suffers from PTSD. However, the preponderance of the probative evidence indicates that the Veteran has not been diagnosed with PTSD. There are no medical reports of record containing a diagnosis of PTSD, and the 2010 VA examiner did not diagnose such. To the extent that the post-service treatment records noted a positive PTSD screening, symptoms of PTSD, or rule-out PTSD, such are not actual diagnoses of the disorder, and no medical records reveal an actual diagnosis of PTSD. The Board acknowledges that by raising this claim on appeal, the Veteran asserts that he actually suffers from PTSD. The Veteran's lay testimony is competent to report his symptoms; however, where the determinative issue involves a question of a medical diagnosis, not capable of lay observation, competent medical evidence is required to substantiate the claim. As a lay person, the Veteran is not qualified or competent, through education, training, or experience to offer a medical diagnosis of a psychiatric disorder or determine its etiology, as such matter requires medical expertise. Additionally, by regulation, the diagnosis of PTSD requires medical evidence diagnosing the condition in accordance 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the DSM-IV. 38 C.F.R. § 3.304(f) (2013). For that reason, PTSD is not a simple medical condition that a lay person is competent to identify, and the statements of the Veteran that he has PTSD related to service are not competent evidence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As there is no probative evidence showing a PTSD diagnosis during the pendency of this appeal, the weight of the evidence is against the claim, and service connection for PTSD is denied. Brammer, 3 Vet. App. 223, 225 (1992). In reaching the above conclusions with respect to both issues, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for posttraumatic stress disorder is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs