Citation Nr: 1539465 Decision Date: 09/15/15 Archive Date: 09/24/15 DOCKET NO. 10-33 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for acquired psychiatric disability, other than dysthymia, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for right knee disability. 3. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from March 1987 to July 1987, and from February 1989 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In an August 2009 rating decision, the RO denied service connection for PTSD, left ear hearing loss, right ear hearing loss, left knee disability, and right knee disability. In an October 2010 rating decision, the RO granted service connection for dysthymia. In a May 2013 decision, the Board denied service connection for left ear hearing loss and left knee disability. The Board remanded to the RO, for the development of additional evidence, the issues of service connection for psychiatric disability other than dysthymia and including PTSD, for right knee disability, and for right ear hearing loss. The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review of the case. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran does not have PTSD. 2. The Veteran has dysthymia, but does not have any other acquired psychiatric disability. 3. Right knee pain and stiffness became noticeable more than a year after separation from service. 4. Right knee arthritis shown on post-service imaging is not attributable to any injury, disease, or other events during service. 5. Disabling right ear hearing loss did not become manifest during service or the year following service, and right ear hearing levels did not change significantly during service. 6. Disabling right ear hearing loss found from 2009 forward is not attributable to noise exposure, injury, disease, or other events during service. CONCLUSIONS OF LAW 1. An acquired psychiatric disability, other than dysthymia, was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). 2. The current right knee disability, including arthritis, was not incurred or aggravated in service, and is not be presumed to be service-connected. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 3. Current disabling right ear sensorineural hearing loss was not incurred or aggravated in service, and is not be presumed to be service-connected. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). VA provided the Veteran notice in an April 2009 letter. In that letter, VA advised the Veteran what information was needed to substantiate claims for service connection, including claims for service connection for PTSD. VA also informed the Veteran how VA assigns disability ratings and effective dates. In the May 2013 Remand directive, the Board instructed the RO to obtain additional VA medical examinations addressing the issues on appeal. The RO subsequently obtained additional VA medical examinations addressing the remanded issues. The Board is satisfied that there has been substantial compliance with the remand directives. Additional remand is not needed. See Stegall v. West, 11 Vet. App. 268 (1998). The claims file contains service treatment records, post-service treatment records, and reports of VA medical examinations. The examination reports and treatment records provide relevant and sufficient information to address the issues on appeal. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Psychiatric Disability The Board will summarize the somewhat complicated procedural history of the Veteran's claim for service connection for psychiatric disability. In April 2009, the Veteran submitted a claim for service connection for PTSD. In an August 2009 rating decision, the RO denied service connection for PTSD. The Veteran appealed that decision. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, when a veteran specifically requests service connection for PTSD, but the medical record includes other psychiatric diagnoses, the claim may not be narrowly construed as only a PTSD service connection claim, but should be considered a claim for service connection for a psychiatric disorder. While the Veteran's appeal for service connection for PTSD has been pending, the issue has been restated to address PTSD and other psychiatric disorders. In VA treatment in April 2010, a clinician diagnosed the Veteran with a mood disorder. In an October 2010 VA examination of the Veteran, the examiner found that the Veteran had previously been diagnosed with adjustment disorder. The examiner provided a diagnosis of dysthymia. He found that the Veteran did not have PTSD. He did not diagnose a mood disorder. In an October 2010 rating decision, the RO granted service connection for dysthymia. In the May 2013 remand, the Board instructed that the Veteran receive a new VA examination with opinion as to whether he had, in addition to his service-connected dysthymia, any other psychiatric disorder that is due to service. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including psychoses, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In this case, there is no contention or evidence that the Veteran has ever had a psychosis, so there is no basis for presumptive service connection. Service connection may also be granted for a disability which is proximately due to or the result of, that is, secondary to, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). The Court has explained that, in general, service connection on a direct basis requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). PTSD is a mental disorder that develops as a result of traumatic experience. It is possible for service connection to be established for PTSD that becomes manifest after separation from service. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. During service, the Veteran had emergency treatment in December 1991. He indicated that he felt suicidal and had a plan. He sought enough sleep medication for two nights. Treatment notes from November and December 1995 reflect his reports of insomnia, with a more than three year history. In April 1996, he had a neurology consultation regarding insomnia. The clinician found that he also had some symptoms of depression. In a September 1996 medical history, he reported a history of frequent trouble sleeping, and of treatment for that issue. In VA treatment in April 2009, the Veteran had a sleep medicine consultation. He was found to have sleep apnea, and continuous positive airway pressure (CPAP) treatment was prescribed. His April 2009 claim for VA disability compensation included claims for service connection for PTSD and sleep problems. On VA examination in July 2009, the Veteran reported sleep problems that began while he was on active duty. In the August 2009 rating decision, the RO granted service connection for the Veteran's sleep apnea and denied service connection for PTSD. The Veteran appealed the denial of service connection for PTSD. The Veteran had a VA mental health consultation in April 2010. He reported being irritable and short-tempered. He related that he had difficulty sleeping and stayed awake with racing thoughts about his military experiences. The clinician's impression was mixed anxiety and depression, with some characteristics of PTSD. Medications were started. The Veteran had a VA PTSD examination in October 2010. He reported ongoing anxiety, depression, and irritability, with periods of fatigue. He described experiences during his service in Iraq. The examiner found that he did not describe being traumatized by those experiences at the time or significantly affected by them later. The examiner found that the Veteran had previously been diagnosed with adjustment disorder. The examiner provided a diagnosis of dysthymia. He found that the Veteran did not have PTSD. As noted above, in the May 2013 remand, the Board sought an opinion as to whether the Veteran had any psychiatric disorder other than dysthymia that is due to service. In a July 2013 VA examination, the examiner reported having reviewed the Veteran's claims file. After file review and examination, the examiner concluded that the Veteran has dysthymia, and explained that dysthymia is a type of mood disorder. He provided the opinion that the Veteran does not have a mood disorder that his separate from his dysthymia. VA mental health clinicians who initially saw the Veteran found a possibility that he had PTSD. On directed examination, and with careful analysis and explanation, the VA clinician who examined him in October 2010 concluded that he did not have PTSD. In light of persuasive clinical findings that the Veteran's condition does not warrant a diagnosis of PTSD, the Board denies service connection for PTSD. The July 2013 VA examiner's opinion persuasively indicates that he does not have any psychiatric disorder separate from and in addition to his dysthymia. As he has no psychiatric disorder separate from the service-connected dysthymia, the Board denies service connection for psychiatric disability other than dysthymia. Right Knee Disability The Veteran essentially contends that current right knee disability began during service. The RO denied service connection for left knee disability. In the May 2013 decision, the Board denied the Veteran's appeal. Thus, presently there is no pending claim for service connection for left knee disability. Arthritis is among the chronic diseases listed at 38 C.F.R. § 3.309 for which service connection may be presumed if it became compensably manifested within one year of separation from service. The Veteran has not reported any right knee problems during the year following his separation from service, and there is no indication that he had compensably disabling right knee arthritis during that year. Thus there is no basis to presume service connection for right knee arthritis. The Veteran's service treatment records show treatment for right foot injury in April 1989 and left knee injury in April 1992. The service treatment records are silent for any incident or complaints involving the right knee. In an August 1996 medical history, he did not report any history of knee problems. On the report of his August 1996 service separation examination, the examiner checked "normal" when describing the condition of the lower extremities. In VA treatment in March 2009, the Veteran reported having pain in both knees and a bump behind his left knee. A treating clinician noted crepitus in the knees and swelling behind the left knee. The clinician prescribed pain medication. In April 2009, the Veteran reported no improvement in bilateral knee pain with medication. He requested and was referred for physical therapy. The Veteran's April 2009 VA disability claim included a claim for service connection for left and right knee pain and injury. On VA examination in July 2009, the Veteran reported a history of a left knee injury during service and another left knee injury after service in 2000. He indicated that he had right knee pain and stiffness due to old injury. He did not relate having sustained any right knee injury during service. The examiner observed that the Veteran had an antalgic gait favoring his right knee. The range of motion of the right knee was from 0 to 135 degrees. There was objective evidence of pain with motion. Right knee x-rays showed Osgood-Schlatter disease, mild patellofemoral degenerative joint disease, and small joint effusion. On VA examination in July 2013, the Veteran reported that his right knee did not bother him during service. He related that presently he had right knee pain and right knee stiffness in the morning. He indicated that the pain began after service. He stated that, at least four years after service, he underwent right knee surgery, with cartilage removal. He indicated that his service duties and his post-service employment were driving a truck. He reported that presently his right knee problems caused difficulty with climbing into a truck. He stated that he had flare-ups of right knee pain with climbing or prolonged walking. The examiner reported having reviewed the claims file. The examiner noted that the Veteran had a diagnosis of degenerative joint disease of the right knee. The range of motion of the right knee was from 0 to 130 degrees, with painful motion from 120 degrees of flexion. The examiner noted 2009 evidence of right knee arthritis. The examiner expressed the opinion that it is less likely than not that the Veteran's right knee disability is related to injury or other events during service. In explanation, the examiner noted the absence of right knee complaints in the service treatment records, and the Veteran's report that right knee surgery was performed four years after service. The Veteran has current right knee arthritis. He did not report right knee pain or injury during service. His right knee was found to be in normal condition at separation from service. He has indicated that he first experienced right knee discomfort a few years after service. The preponderance of the evidence is against incurrence or aggravation of any right knee problem during service. Considering the Veteran's report that he did not experience right knee discomfort during or soon after service, and the 2013 VA examiner's logical and persuasive opinion, the preponderance of the evidence is against a nexus between the current right knee arthritis and any injury, disease, or other events during service. The Board therefore denies service connection for right knee disability. Right Ear Hearing Loss The Veteran essentially contends that he has bilateral hearing loss disability that began during service or developed as a result of events during service. The RO denied service connection for left ear hearing loss. In the May 2013 decision, the Board denied the Veteran's appeal. There is no pending claim for service connection for left ear hearing loss. For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that 38 C.F.R. § 3.385 does not preclude service connection for current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that, when audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of a veteran's separation, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. Organic diseases of the nervous system, such as sensorineural hearing loss, are among the chronic diseases listed at 38 C.F.R. § 3.309 for which service connection may be presumed if they became compensably manifested within one year of separation from service. The Veteran has reported that during service his main duties were driving a truck. During service, on hearing testing in March 1987, in the right ear the auditory thresholds for the frequencies of 1000, 2000, 3000, and 4000 Hertz were all 10 decibels or lower. On hearing testing in January 1989, in the right ear the auditory thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were all 15 decibels or lower. On hearing testing in August 1996, in the right ear the auditory thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were all 20 decibels or lower. The testing during service did not include speech recognition testing. The testing during service showed right ear hearing levels that are not considered a disability for VA benefits purposes under 38 C.F.R. § 3.385. The Veteran has not reported experiencing any difficulty hearing during the year following his separation from service, and there is no indication that his hearing was tested during that year. Thus there is no basis to presume service connection for right ear hearing loss disability. In VA treatment in March 2009, the Veteran reported that his hearing capacity had decreased. On VA audiology examination in July 2009, the Veteran stated that he had difficulty hearing from the right side. He did not report having tinnitus. He stated that during service he drove a truck and had service in the Persian Gulf. He related that he was exposed to noise from live rounds and trucks. He indicated that after service he worked driving a truck. He reported recreational noise exposure from hunting and motorcycles. On testing, in the right ear the auditory thresholds were 30 decibels at 500 Hertz, 25 decibels at 1000 Hertz, 35 decibels at 2000 Hertz, 70 decibels at 3000 Hertz, and 80 decibels at 4000 Hertz. In the right ear the speech recognition score was 92 percent. The examining audiologist diagnosed sensorineural hearing loss in the right ear. The right ear hearing loss met the 38 C.F.R. § 3.385 requirements for hearing loss disability. The examiner noted that there was no significant change in the Veteran's hearing from entrance into service to separation from service. For that reason, the examiner opined, it is not at least as likely as not that the current hearing loss is a result of noise exposure during service. In July 2013, the Veteran had another VA audiology examination. The examining audiologist reported having reviewed the Veteran's claims file. Testing showed disabling right ear hearing loss. The examiner expressed the opinion that it is not at least as likely as not that the Veteran's right ear hearing loss is caused by events in his service. In explanation, he noted that there was normal hearing in both ears at separation from service. He stated that a significant change in hearing thresholds may indicate noise exposure or acoustic trauma. He found that during the Veteran's service there was a significant shift in thresholds in the left ear, but not in the right. The 2013 examiner provided clear and logical explanation of his opinion. His opinion therefore has weight as to the etiology of the current right ear hearing loss. The Veteran has current right ear hearing loss disability. He is certainly permitted to describe his noise exposure during service, and the Board accepts that he had the noise exposure that he reports. Disabling right ear hearing loss did not become manifest during his service, however. More importantly, because his right ear hearing thresholds did not change significantly over the course of his service, the 2013 examiner found that his right ear hearing did not show signs of reaction during service to noise exposure or acoustic trauma. Considering the 2013 opinion against a nexus, the passage of more than a decade between service and the hearing loss diagnosis, and a history of roughly equal noise exposure during and after service, the preponderance of the evidence is against service connection for the current right ear hearing loss. ORDER Entitlement to service connection for PTSD or other acquired psychiatric disability other than dysthymia is denied. Entitlement to service connection for right knee disability is denied. Entitlement to service connection for right ear hearing loss is denied. ____________________________________________ MATTHEW D. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs