Citation Nr: 1613359 Decision Date: 04/01/16 Archive Date: 04/13/16 DOCKET NO. 10-04 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), bipolar disorder, depression, and anxiety. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1968. The matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that an appeal on the issue of entitlement to service connection for gastrointestinal disorder, to include diverticulitis and colitis, was perfected by the Veteran. However, a November 2013 rating decision granted service connection for that disability . Therefore, the benefit sought on appeal has been granted and that issue is no longer before the Board. Shoen v. Brown, 6 Vet. App. 456 (1994). In August 2013, the Board reopened the Veteran's claim for service connection and remanded this case for further development. In August 2013, the RO sent the Veteran a letter asking him to identify additional medical treatment records for his claimed disabilities, including private records related to his psychiatric treatment. In addition, the August 2013 letter advised the Veteran of the July 13, 2010 regulation changes concerning claims for PTSD adjudicated under 38 C.F.R. § 3.304(f). In September 2013, the RO provided the Veteran with a formal finding on the unavailability of disability medical records from the Social Security Administration. Furthermore, the RO obtained medical examinations regarding the Veteran's psychiatric and hearing loss disabilities. The Board is therefore satisfied there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's diagnosed chronic adjustment disorder, with mixed anxiety and depressed mood, is not etiologically related to active service. 2. The preponderance of the competent and credible evidence of record is against a finding that any current bilateral hearing loss disability was incurred in or is related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for psychiatric disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1137, 5103, 5103A, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.309, 3.385 (2015). 2. The criteria for service connection for hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 1137, 5103, 5103A, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014 & Supp. 2015); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated November 2007, March 2009 and August 2013. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent November 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. In addition, VA has obtained examinations with respect to the Veteran's claims on appeal that occurred in December 2009 and October 2013. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014 & Supp. 2015); 38 C.F.R. § 3.303 (2015). In order to establish entitlement to service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases, such as organic diseases of the nervous system, including sensorineural hearing loss, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014 & Supp. 2015); 38 C.F.R. 3.307, 3.309(a) (2015). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f) (2015). The PTSD diagnosis must be made in accordance with the criteria of American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a) (2015). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD varies depending upon whether a Veteran engaged in combat with the enemy during service, whether the claimed stressor is a personal assault, and whether the claim is based on fear of a hostile military or terrorist act during service. 38 C.F.R. § 3.304(f) (2015); Gaines v. West, 11 Vet. App. 353 (1998). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, provided that testimony is found to be satisfactory, credible, and consistent with circumstances, conditions, or hardships of combat service. 38 U.S.C.A. 1154(b) (West 2014 & Supp. 2015); 38 C.F.R. 3.304(f)(1) (2015); Zarycki v. Brown, 6 Vet. App. 91 (1993). However, if the alleged stressor is not combat-or personal assault-related, then the Veteran's lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the testimony or statements. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). Lay evidence may also establish an alleged stressor where: (1) the stressor is related to the Veteran's fear of hostile military or terrorist activity; (2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor; (3) the stressor is consistent with the places, types, and circumstances of the Veteran's service; and (4) there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3) (2015). Fear of hostile military or terrorist activity occurs where a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (2015). In addition, when service connection for PTSD is claimed based upon a personal assault during service, other considerations apply. 38 C.F.R. § 3.304(f)(5) (2015). However, the Veteran has not alleged that he has PTSD as the result of any personal assault during service. Therefore, the Board finds that those provisions do not apply. 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. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (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. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Psychiatric Disabilities The Veteran asserts that his psychiatric disabilities, including post-traumatic stress disorder (PTSD), bipolar disorder, depression, and anxiety, were caused by active service. The primary assertion of the Veteran is that he has PTSD due the following stressors that occurred in Vietnam: (1) his supply truck was hit by a landmine resulting in several weeks of hospitalization due to a head injury; (2) he had to fire his weapon at the enemy while performing guard duty; and (3) he had a nervous breakdown while in Vietnam resulting in being placed on medication. The Board notes that a February 2008 memo shows that the VA was unable to verify any of the alleged stressors. Specifically, this memo states that the Veteran's service medical records do not indicate he was hospitalized for several weeks due to head injuries. In addition, the memo states that the Veteran's assertion that he fired his weapon is not the type of information that would be recorded in military records. Furthermore, neither the service medical records, nor the separation examination show treatment or medication for any psychiatric condition. In addition, the Veteran's post-service psychiatric treatment records show that the Veteran alleged additional stressors related to several "close calls" in Vietnam due to shelling in which he witnessed several soldiers die, and seeing dead Vietnamese soldiers. The Veteran served in Vietnam as a duty soldier and a supply specialist. A review of the service medical records shows treatment for being hit in the left eye, treatment for a head injury sustained from a heavy object falling on him, and headaches in the frontal area of the head and around the eyes. However those records show no indication that the Veteran experienced an explosion from a landmine resulting in head injuries or hospitalization. Furthermore, there is no indication in the Veteran's military personnel records that he was involved in combat. Moreover, the Veteran's service medical records do not show a prescription for medication to treat any psychiatric disability, including treatment for a nervous breakdown. The medical evidence of record shows that in October 2007, Dr. N. diagnosed the Veteran with posttraumatic stress symptoms (PTSS) and depression secondary to current medical illnesses. In addition, in November 2007, Dr. B. examined the Veteran and concluded that the etiology was unclear since the time frame the Veteran reported onset of symptoms coincided with family stressors and significant multiple medical issues. Therefore, Dr. B. stated, "[i]t is not clear to what degree his medical issues may be contributing to his mood and PTSD" symptoms. Furthermore, in February 2008, Dr. N. opined that the Veteran's PTSS and depression "seems secondary to various medical issues, no real psychiatric treatment history in past 30 years." The Veteran's VA medical records show ongoing mental health treatment from 2008 to 2012. In those records, the Veteran asserts his PTSS and depression are related to service. However, his treating physicians note financial, family, and medical health problems as contributing stressors. The Board notes that in a December 2010 VA medical record, Dr. F. issued a positive PTSD screening report based on the Veteran's lay statements that, due to combat in Vietnam, he had nightmares, hypervigilance, flashbacks, and avoidance. The sole evidence supporting the contention is the Veteran's contentions that the claimed events occurred. Although Dr. F provided a positive screening for PTSD, the Board notes that a diagnosis by a physician or other health care professional that has accepted a Veteran's description of active duty experiences as credible and diagnosed the Veteran as suffering from PTSD does not mean the Board is required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Furthermore, the Board notes that despite providing a positive December 2010 PTSD screening, subsequently in September 2012, Dr. F. issued a negative PTSD screening report. Moreover, the Board finds that there is no verifiable in-service stressor on which the Veteran can base a PTSD diagnosis. While Dr. F. issued a positive PTSD screen in December 2010, the rationale was based upon the absence of any verifiable evidence that the Veteran's claimed stressors occurred. The question of whether the Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 406 (1991). Therefore, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals. Whether the evidence establishes the occurrence of a claimed stressor is a question of fact for adjudicators. The Board finds that the credible and competent evidence does not support the Veteran's assertions of the stressor events claimed. Three physicians have seen the Veteran for mental disorders. Two found he did not have PTSD and the third, who initially found a positive PTSD screening, subsequently revised that opinion to a negative PTSD screening. Therefore, the Board finds that the preponderance of the evidence is against a finding that a diagnosis of PTSD is warranted. If the Veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressors are not related to fear of hostile military or terrorist activity, then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Moreau v. Brown, 9 Vet. App. 389 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The Board has reviewed the Veteran's service medical records, service personnel records, and all evidence submitted by the Veteran. The record does not show any treatment or reports concerning the residuals of a landmine blast. While the Veteran has submitted statements that he was treated for residuals from the blast, there are no such treatment records in the file. In the Veteran's subsequent separation examination conducted in July 1968, he was again evaluated as normal with no mention of any injuries by the Veteran. Had the Veteran actually incurred injuries from an alleged landmine blast, it is likely that he would have reported that during those medical examinations. With regard to the Veteran's assertion of the additional stressors of witnessing dead Vietnamese soldiers, witnessing fellow soldiers dying in a mortar attacks and firing his weapon at the enemy, again, the only evidence of record corroborating those assertions is the Veteran's own statements. The Board acknowledges that the Veteran is competent to give evidence regarding what he experienced in-service, such as recounting events that he witnessed or feelings that he experienced. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465 (1994). While the Veteran is competent to provide that evidence, claimed stressors must be corroborated by evidence other than his own testimony. The Board, as the fact finder, must determine the credibility of lay evidence. Culver v. Derwinski, 3 Vet. App. 292 (1992). There is simply no evidence of record that lends credence to the Veteran's statements that these incidents occurred. However, even if those events occurred, multiple examiners have found that a diagnosis of PTSD is not warranted. And the examiner who initially found a positive PTSD screening, subsequently found a negative PTSD screening. Therefore, the Board finds that the preponderance of the evidence is against a finding that a diagnosis of PTSD is warranted, regardless of whether the claimed events in service occurred. Therefore, the Board finds that the record does not support the incurrence of the Veteran's claimed in-service stressors. Therefore, the Board finds that the preponderance of the evidence is against a finding that the claimed stressors occurred during service. Lastly, in an October 2013 VA examination report, the examiner stated that the Veteran does not have a diagnosis of PTSD that conforms to DSM-IV criteria. However, the examiner diagnosed the Veteran with chronic adjustment disorder, with mixed anxiety and depressed mood. The examiner stated that no other mental disorder was diagnosed. As to any nexus between the chronic adjustment disorder and the Veteran's service, the October 2013 examiner opined that the Veteran's condition "is not at least as likely as not (i.e. less likely as not) related to the Veteran's military service. The rationale for this...includes references to the precipitants (i.e. medical) of this adjustment disorder, as well as the nature and timing of symptom onset." The Board finds that opinion is probative and persuasive because of the medical training and experience of the examiner. In addition, the Veteran has not submitted any contrary competent evidence that supports the claim. The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a psychiatric disability, including PTSD, bipolar disorder, depression, and mixed anxiety. Accordingly, as the preponderance of the evidence is against the claim for service connection for a psychiatric disability, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014 & Supp. 2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing Loss Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2015). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Competent evidence of a current hearing loss disability meeting the requirements of 38 C.F.R. § 3.385, and a medically sound basis for attributing that disability to service, may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran asserts he has had decreased hearing sensitivity since his military service. The service medical records show normal hearing levels in both the induction and separation examinations. The Veteran's August 1966 induction examination noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 -5 -5 -5 LEFT 5 -5 -5 - -5 The Veteran's July 1968 separation examination noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 RIGHT -10 5 5 - 0 LEFT -10 5 5 - 0 Post-service medical records show treatment for hearing loss in June 2007. In a June 2007 medical report from Hearing and Speech Associates of Stamford, the Veteran's audiogram shows hearing loss in the right ear above 2000 Hertz, and in the left ear above 1500 Hertz. Although medical reports dated in July and August 2007 note "no hearing loss" and "sensorineural hearing loss rule[d] out" respectively, a September 2008 VA medical report states that pure tone testing revealed moderately severe sensorineural hearing loss above 2000 Hertz in the right ear, and a mild to moderately severe sensorineural hearing loss above 1000 Hertz in the left ear. At a December 2009 VA examination, the Veteran's audiology examination testing results were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 60 60 LEFT 15 20 55 70 60 The December 2009 VA examiner reviewed the Veteran's previous hearing treatment records including the induction and separation audio examinations and opined that it is "not likely that this Veteran's hearing loss is related to service." The rationale was that the Veteran exited the service with normal hearing, and there was no demonstrated threshold shift between the induction and separation examinations. At a VA examination in October 2013. The audiology examination results were: HERTZ 500 1000 2000 3000 4000 RIGHT 55 60 70 75 80 LEFT 40 40 60 75 75 The examiner answered "no" to the question, "Is the Veteran's hearing loss at least as likely as not (50% probability or greater) caused by or a result of an event in the military service?" The October 2013 VA examiner's rationale was that the Veteran's "[i]nduction and separation examinations show normal hearing sensitivity with no shifts in hearing that are consistent with noise exposure." The Board finds the VA audio examinations the most probative evidence of record. Furthermore, the Board finds that the credible and competent evidence of record does not show continuity of symptomatology of hearing loss since service. 38 C.F.R. §3.303(b) (2015). There is no medical or lay evidence of hearing loss during service or during the applicable presumptive period, nor is there a showing of continuity of symptomatology of hearing loss after service. If it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran has not submitted any competent evidence that supports his claim by showing that current hearing loss is related to service. While the Veteran is competent to state when he first experienced diminished hearing, the Board finds that he is not shown to have medical training and thus his lay statements cannot service to provide a relationship to service or noise exposure for hearing loss. The Board finds that the examination opinions are more persuasive because of the training of the examiners. Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection for hearing loss and service connection must be denied. 38 U.S.C.A. § 5107(b) (West 2014 & Supp. 2015). ORDER Entitlement to service connection for a psychiatric disability, to include PTSD, bipolar disorder, depression, and anxiety, is denied. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs