Citation Nr: 1531035 Decision Date: 07/21/15 Archive Date: 08/05/15 DOCKET NO. 13-33 552 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a thoracolumbar spine disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active duty service from December 1972 to December 1974. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2011 rating decision of the RO in Winston-Salem, North Carolina. FINDINGS OF FACT 1. A chronic thoracolumbar spine disorder is not related to service; thoracolumbar arthritis did not become manifest to a degree of 10 percent or more within one year of service separation. 2. Bilateral hearing loss and tinnitus are not related to service; an organic disease of the nervous system did not become manifest to a degree of 10 percent or more within one year of service separation. 3. A PTSD stressor is not corroborated; the Veteran does not have a psychosis; an acquired psychiatric disorder is not related to service. CONCLUSIONS OF LAW 1. A thoracolumbar spine disorder was not incurred in service; thoracolumbar arthritis is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). 2. Bilateral hearing loss was not incurred in service; an organic disease of the nervous system is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2014). 3. Tinnitus was not incurred in service; an organic disease of the nervous system is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). 4. An acquired psychiatric disorder was not incurred in service; a psychosis is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 4.125 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. Entitlement to service connection requires (1) medical evidence of current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran served 90 days or more during a period of war or after December 31, 1946, certain chronic diseases, such as arthritis, organic disease of the nervous system, and/or psychoses, are presumed to have been incurred during service if they become manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for certain chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating (1) that the disease was noted during service or during the applicable presumption period; (2) evidence of post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the disease and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hearing Loss and Tinnitus The Veteran contends that he incurred hearing loss and tinnitus directly in service, as a result of exposure to loud sounds. 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). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a claimant has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When audiometric test results at separation from service do not meet the above regulatory requirements for establishing a disability at that time, the claimant may nevertheless establish service connection for a current hearing disability by evidence that the current disability is causally related to service. Hensley, supra. When examined, accepted, and enrolled for active duty in December 1972, the Veteran's ears and hearing were tested and were found to be clinically normal. A physical profile (PULHES) rating of H-1 was assigned for hearing. PULHES is the six categories into which a physical profile is divided. The H stands for hearing. The number 1 indicates that an individual possesses a high level of medical fitness and, consequently, is medically fit for any military assignment. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). At enlistment, the Veteran completed a report of medical history, at which time he noted no history of, or current, ear trouble or hearing loss. Audiometric testing was conducted at service entry and the following pure tone thresholds were recorded: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 - 15 LEFT 10 10 15 - 25 Service treatment records reveal no treatment or complaint regarding the Veteran's ears or hearing during service, to include decreased acuity, ringing in the ears, or other sounds in the ears. When examined for service separation in November 1974, the Veteran's ears and hearing were found to be clinically normal. The Veteran was assigned a physical profile rating for hearing and ears of H-1, the same as at entry. Audiometric testing was also conducted at service separation and the following pure tone thresholds were recorded: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 - 25 LEFT 25 5 5 - 15 On the report of medical history at service separation, the Veteran reported that he had no history of ear trouble or hearing loss, and that he had no current ear trouble or hearing loss. After service, there is no record of treatment or complaint regarding the ears or hearing until the current claim, more than 35 years later. In connection with the current claim, the Veteran was provided a VA audiology examination in January 2011. At that time, he reported having decreased hearing and tinnitus since 1975. The Board observes that this is after service separation. The Veteran reported that he was routinely exposed to significant noise throughout his military service. The Veteran is competent to describe his exposure to loud sounds, and the Board finds that this assertion is credible and consistent with his service. Audiometric testing in January 2011 reveals pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 65 80 90 100 LEFT 105 105 105 105 105 Speech recognition ability was 68 percent in the right ear and of 0 percent in the left ear. The examiner offered an opinion that it is less likely as not that the current hearing loss is related to and/or the result of his conceded military noise exposure. The rationale for this opinion was that there were no significant threshold shifts during military service when the Veteran was routinely exposed to acoustic trauma; there were also no complaints of hearing problems for three-plus years following military service, and the current asymmetry in results (with complete loss of hearing in left ear) is inconsistent with his military noise exposure. The examiner also found that the claimed constant tinnitus is at least as likely as not related to hearing loss and therefore it was the VA audiologist's opinion that it also is less likely as not related to and/or the result of his military noise exposure. It is unclear how the examiner arrived at the "three-plus years" figure, as the Veteran reported to the examiner that he had decreased hearing and tinnitus since 1975. Nevertheless, that is still after service separation, and does not alter the examiner's reasoning that the onset of symptoms was after service. There is no medical opinion that purports to relate current hearing loss or tinnitus to service. The evidence in favor of such a nexus comes from the Veteran's own account and that of his brother. The account of the Veteran's brother is that the Veteran complained of ringing in the ears after getting out of service. Then, over the years, he began to complain about his hearing. The Veteran told his brother that he thought that the gunfire that he experienced when he was in the military was the cause of hearing problems. It is well established that lay statements are competent evidence with respect to some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, lay evidence is competent with regard to identification of a disease with 'unique and readily identifiable features' which are 'capable of lay observation.' See Barr, 21 Vet. App. at 308-09. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes 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'); see 38 C.F.R. § 3.159(a)(2). Both the Veteran and his brother are competent to describe symptoms they have observed. The Veteran is competent to describe perceived ringing or other sounds in the ears. The Veteran's brother is competent to describe the Veteran's statements, such as his complaint regarding sounds in the ears or difficulty hearing. However, as lay persons without any professed training in audiology, neither the Veteran nor his brother is competent to state that the Veteran's hearing acuity actually decreased during service. The determination as to whether there was a decrease in hearing acuity must be made by specific testing administered by a properly trained medical professional. Therefore, in comparison to the Veteran's recent assertions, the Board attaches greater probative weight to the examination report at service separation, which established that his hearing was clinically normal. While some audiometric values were higher at service separation than at entry, and others were lower, these results were interpreted by the examiner as normal on both occasions and the January 2011 VA examiner clearly found those differences to be insignificant. The Board also notes that the report of medical history at service separation establishes that the Veteran did not believe that he had hearing loss or ear trouble at that time. The Board notes that the report of medical history at service separation was completed contemporaneous to service. It is therefore deemed highly reliable as to the Veteran's perceptions regarding his health at that time. The Board also notes that the report of medical history was completed in the context of a medical evaluation. The "medical diagnosis or treatment" exception to hearsay rule (Fed. R. Evid. 803) provides that "statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care." The United States Court of Appeals for Veterans' Claims (Veterans Court) has observed that many principles espoused in the Federal Rules of Evidence have no place in veterans jurisprudence, see Flynn v. Brown, 6 Vet. App. 500, 503 (1994); however, the Veterans Court has also observed that recourse to the Federal Rules of Evidence is appropriate where they will assist in articulation of the Board of Veterans' Appeals' reasons, see Rucker v. Brown, 10 Vet. App. 67 (1997). The Board also notes that the statement of the Veteran's brother, that the Veteran complained of ringing in the ears after getting out of service, is imprecise as to the actual date of onset of these symptoms. It is not in dispute that he developed these symptoms "after service." The question is: how soon after service? To the extent this statement implies that such symptoms started immediately at service separation, it conflicts with the Veteran's statement of medical history that he had no history of, or current, ear trouble. For the reasons discussed with respect to the Veteran's account, the Board assigns greater probative weight to the report of medical history at separation than to the recent recollection of the Veteran's brother, who is certainly not a disinterested party. Moreover, as this account does not establish a date of onset for hearing loss or tinnitus with reasonable precision, it is also not probative of continuity of symptoms regarding an organic disease of the nervous system, to include sensorineural hearing loss or tinnitus. Regarding the Veteran's more definitive statement that he experienced onset of hearing loss and tinnitus in 1975, although this falls within one year of service separation, it does not establish that he had hearing loss to a degree of 10 percent or more within that time period. The Veteran's lay assertion is not competent evidence as to the degree of hearing loss. The Veteran's lay assertion is also not competent evidence regarding the chronicity of tinnitus, notwithstanding that he is competent to describe the symptoms of tinnitus. The only evidence regarding continuity of symptomatology comes in the context of the current claim. There are no treatment reports or assertions of treatment during the intervening years, and there are no previous claims for benefits. While the lack of treatment and the lack of action with respect to filing a claim are not conclusive regarding the lack of symptoms during the intervening period, continuity of symptomatology alone is not sufficient to establish service connection for hearing loss or tinnitus as organic diseases of the nervous system. There must also be medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Here, the January 2011 audiologist's opinion is the only competent evidence regarding the etiology of current hearing loss. The examiner's conclusion that the current asymmetry in results is inconsistent with the Veteran's military noise exposure is persuasive evidence against a nexus between the Veteran's hearing loss and service. The examiner's conclusion that the Veteran's tinnitus is related to his hearing loss is also persuasive evidence against a nexus between current chronic tinnitus and service. Based on the facts found, the Board concludes that service connection for hearing loss and tinnitus is not warranted. In reaching these conclusions of law, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thoracolumbar Spine Disorder The Veteran is seeking service connection for a thoracolumbar spine disorder on the basis that it is directly related to an injury incurred in service. When examined, accepted, and enrolled for active duty in December 1972, the Veteran's spine was found to be clinically normal, and the Veteran reported no history of recurrent back pain, and no current recurrent back pain. During service, the Veteran was treated for complaint of back pain on October 3, 1973 and October 22, 1974. During the second visit, he noted sharp pains in the back for about one week. He did not remember injuring his back, but noted that he had been carrying a radio on guard twice that week. He was seen again on October 30, 1974 and diagnosed with chronic lumbar back pain. When examined for service separation in November 1974, the Veteran's spine was clinically normal. On the report of medical history, the Veteran reported no history of recurrent back pain, and no current recurrent back pain. After service, there is no record of treatment or complaint regarding the thoracolumbar spine until the current claim, more than 35 years later. A January 2011 VA examination includes a current diagnosis of thoracolumbar degenerative joint disease with scoliosis. The examiner opined that the thoracolumbar spine disorder is less likely than not related to service. The rationale was that the Veteran had described onset of back pain only 5-10 years prior to the examination, and these complaints were not due to injury or trauma. There is no medical opinion that purports to relate a current thoracolumbar spine disorder to service. The evidence in favor of such a nexus comes from the Veteran's own account and that of his brother. The Veteran's brother has asserted that the Veteran complained of back pain after getting out of service. While this account is competent evidence, it is imprecise as to the actual date of onset. It is acknowledged that the Veteran experienced back pain at some time after service separation; however, establishing chronicity of arthritis in service or continuity of symptomatology after service requires evidence that symptoms were present within a specific one-year after service. This cannot be determined by the account of the Veteran's brother. The Veteran is competent to describe his symptoms and their point of onset. However, he is not competent to diagnose arthritis or scoliosis, or to relate such diagnoses to an injury in service. The Veteran's assertions also do not address the difference in diagnosis between service and currently. The Veteran was diagnosed with back "pain" in service, was found to be clinically normal at separation, and is currently diagnosed with "arthritis." In essence, the Veteran has asserted that the current condition and the condition noted in service are somehow related. This is a question requiring medical knowledge which the Veteran does not profess. Regarding the use of the word "chronic" in October 1974 ("chronic lumbar back pain"), the use of this word does not establish chronicity. See 38 C.F.R. § 3.303(b). Chronic lumbar back pain is not among the current diagnoses. Moreover, lumbar back pain is not among the chronic diseases to which a presumption applies. The October 1974 report does not include a diagnosis of arthritis. The Veteran's recent account also conflicts with his account on the report of medical history at service separation, which establishes his belief at the time that he had no history of recurrent back pain, and that he had no current recurrent back pain. The report of medical history at service separation was completed contemporaneous to service, and in the context of a medical examination. It is therefore more reliable than the Veteran's recent assertions, which were made decades after service and in support of claim for monetary benefits. As the competent evidence is against the element of nexus, the Board concludes that service connection for a thoracolumbar spine disorder is not warranted. In reaching the above conclusion of law, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Acquired Psychiatric Disorder The Veteran is seeking service connection for an acquired psychiatric disorder, claimed as PTSD, on the basis that it resulted from a personal assault during service. In additional to the general service connection requirements for psychiatric disorders, the specific requirements governing service connection for PTSD require medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Service treatment records do not substantiate any complaint of or treatment for a psychiatric disorder or symptoms of a psychiatric disorder. When examined for service separation in November 1974, the Veteran was found to be psychiatrically normal. He was assigned a profile (PULHES) rating of S-1. PULHES is the six categories into which a physical profile is divided. The letter S stands for psychiatric, and the number 1 indicates that he possessed a high level of medical fitness and, consequently, was medically fit for any military assignment. See 9-3(c)(1) Army Regulation 40-501, Change 35; Hanson v. Derwinski, 1 Vet. App. 512 (1991); Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The Veteran reported that he had no history of depression, excessive worry, or nervous trouble of any sort. He also reported that he had no current depression, excessive worry, or nervous trouble of any sort. There was no manifestation of a psychosis within one year of service separation, and no diagnosis of record confirming the presence of psychosis. See 38 C.F.R. § 3.384 (The term "psychosis" is defined in as any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, of the American Psychiatric Association (DSM-IV-TR): (a) brief psychotic disorder; (b) delusional disorder; (c) psychotic disorder due to general medical condition; (d) psychotic disorder not otherwise specified; (e) schizoaffective disorder; (f) schizophrenia; (g) schizophreniform disorder; (h) shared psychotic disorder; and (i) substance-induced psychotic disorder). Therefore, the presumptive provisions relating to certain chronic diseases manifest in service or within a stated period after service do not apply. After service, the first reference to a psychiatric disorder comes in the context of the current claim, 35 years later. During a Nurse Intake Interview at the Community Based Outpatient Clinic in Greenville on September 19, 2009, a PTSD screen was positive. The Veteran reported experiencing a military sexual trauma (MST) in the past. The Veteran reported feeling depressed, and he stated that, when he was in the Army, fellow soldiers made unwelcome sexual advances towards him. He stated that this made him feel uncomfortable because he had to continue working with these individuals. The Veteran also reported significant family issues, including that his sister had been killed in a motor vehicle accident the prior week, and that his daughter had died one year and a half before. A MST Consultation at the Durham VA Medical Center on March 1, 2010 reveals that a discussion of recent family deaths intensified feelings and memories about a MST. The examiner diagnosed PTSD, chronic, severe. Mental Health Consultations at the Community Based Outpatient Clinic in Greenville on March 22, 2010, March 29, 2010, June 13, 2011, and February 16, 2012 also reveal Axis I diagnoses of PTSD related to MST, as well as depressive disorder NOS. Thus, the post-service evidence substantiates a current diagnosis of PTSD as well as depressive disorder NOS. The diagnoses of PTSD are nominally linked to the Veteran's account of an in-service stressor. The claim was denied by the RO because the Veteran's claimed PTSD stressor could not be coorroborated, and there was no otherwise no psychiatric disease noted during service. The Veteran has provided his account that he experienced sexual assaults by fellow service personnel throughout the period of his basic training. The Veteran's brother submitted a statement recounting that, when the Veteran was discharged from the military, there was a noticeable change in his behavior. The Veteran wanted to stay to himself all the time; he did not want to be around people at all. When the Veteran's brother pleaded with him to explain what was going on, he broke down and began to tell about an incident that happened to him while he was in service. This incident involved a sexual assault. The Board notes that the Veteran's described stressor does not involve fear of hostile military or terrorist activity as described in the amended PTSD regulations (effective July 13, 2010). He was stationed in the U.S. at the time, and his alleged attacker was reportedly a member of the U.S. armed forces. The stressor is also not combat related. Rather, the stressor falls into the category of a personal assault, which is defined as "an event of human design that threatens or inflicts harm." See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 1, Section D.17. Where a claimed stressor is not related to combat, lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Significant to this appeal, where there are multiple diagnoses of PTSD, corroboration of an in-service stressor generally cannot consist of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. However, special consideration is given to claims based on personal assault. In such cases, evidence other than the Veteran's service records can corroborate the occurrence of a claimed in service stressor based on personal assault. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f). See also Menegassi v. Shinseki, 628 F.3d 1379 (Fed. Cir. 2011) (when a claim is predicated on personal/sexual assault, a post-service examination of a Veteran may be used to establish the occurrence of the claimed stressor). Here, the records contemporaneous to service contain nothing that might be used to support the Veteran's recent assertion as to the occurrence of stressful event in service. The Veteran has stated that he did not report the incident at the time. Of course, the failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Courts have recognized that, since sexual assault is an extremely personal and sensitive issue, many incidents are not officially reported until years later. Menegassi at 1383; see also Bradford v. Nicholson, 20 Vet. App. 200 (2006). However, the Veteran also has not identified or submitted contemporaneous records reflecting changes in behavior or performance in the wake of the alleged assault. There is no indication that he went AWOL, or that he requested a transfer to a different unit or assignment. There is no indication that his performance decreased or was in any way affected. There is no indication that he sought counseling within the service or from private providers. There is also no contemporaneous account of the stressor, such as a letter or diary dating from the time of service. The only evidence that purports to corroborate the Veteran's account is his brother's statement. However, this is not a contemporaneous account, but was made recently, in the context of the current claim. As noted above, the Veteran's brother is not a disinterested party, and the Board may properly consider the personal interest he has in the Veteran's case. The Board is not free to ignore his (or the Veteran's) assertion as to any matter upon which he is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) There is also no indication or assertion that the Veteran sought treatment for his symptoms for several decades after service. While this is not conclusive evidence as to the absence of symptoms, it is certainly probative evidence on that point. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs against the claim). When viewed in the context of a purported admission to the Veteran's brother of the details of the assault shortly after service separation, and the assertion of the Veteran's brother that the Veteran was experiencing noticeable symptoms of withdrawal and social avoidance when he got out of service, the lack of any evidence of treatment for reportedly significant symptoms, seems incongruous. Moreover, the Veteran had just undergone a psychiatric evaluation at service separation and was found to be clinically normal. While the Veteran's brother is competent to describe observed behavior, in the context of such a recent examination, the description of noticeable psychiatric symptoms appears unlikely. In sum, the Board finds that the evidence in favor of the claim on the question of the occurrence of an in-service stressor is not credible. This evidence, which consists solely of recent accounts from the Veteran and his brother, points to no detail that can be independently verified, even by means of a medical opinion. As such, the Board finds that a preponderance of the evidence is against the occurrence of the claimed in-service stressor. In light of the facts found, the Board concludes that service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. In reaching the above conclusion of law, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist The Veteran does not assert that there has been any deficiency in the notice provided to him in June 2010, August 2010, and November 2010, under the Veterans Claims Assistance Act of 2000 (VCAA) and he has not identified any prejudice resulting from any deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (no presumption of prejudice on a notice deficiency; the burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency's determination). VA will not deny a claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f). Here, the notice provided to the Veteran included notice of the alternative types of evidence that might assist in substantiating his claim based on personal assault. The RO has obtained pertinent medical records including the service treatment records, VA outpatient treatment reports, and private treatment reports identified by the Veteran. The RO notified the Veteran in the June 2010 letter that he could submit evidence from alternative sources to support the occurrence of the in-service personal assault. The Veteran responded in June 2010 indicating: " I have enclosed all the remaining information or evidence that will support my claim or I have no other information or evidence to give VA to support my claim. Please decide my claim as soon as possible." The RO requested all service treatment and service personnel records from the National Personnel Records Center (NPRC) in June 2010. The NPRC responded later that month by sending "ALL AVAILABLE REQUESTED RECORDS." A report of telephone contact dated November 16, 2010 reveals the Veteran's assertion that he "never reported the incidents" involving personal assaults. Based on the information provided by the Veteran, the Board finds that there is no outstanding evidence that might assist in substantiating the claim for PTSD based on personal assault. The RO has also obtained appropriate medical examinations regarding the thoracolumbar spine, hearing loss, and tinnitus claims, as well as medical opinions. The Veteran has made no specific allegations as to the inadequacy of any opinion. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Regarding an opinion as to the occurrence of the Veteran's alleged stressor, as discussed above, there are no contemporaneous notations in the service personnel or treatment records, there are no accounts of behavioral or performance changes, and the Veteran has stated that he did not report the incident at the time. While a Veteran's failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur, it contributes to the reasonable conclusion that there is no contemporaneous evidence that might inform a medical opinion on this question. The Board has found the account of the Veteran's brother as to behavioral changes noted after service is not credible. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of these claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. CONTINUED ON NEXT PAGE-ORDER ORDER Service connection for a thoracolumbar spine disorder is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for an acquired psychiatric disorder is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs