Citation Nr: 1647081	
Decision Date: 12/16/16    Archive Date: 12/30/16

DOCKET NO.  14-29 806	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD).  

2.  Entitlement to service connection for PTSD.

3.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:  Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

M. Gonzalez, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from January 2000 to January 2002, from January 2006 to October 2006, and from August 2009 to April 2010, to include service in Iraq as part of Operation Enduring Freedom.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated November 2012 and December 2013 from the Department of Veterans (VA) Regional Office (RO) in Milwaukee, WI.  


FINDINGS OF FACT

1.  The Veteran's original claim of entitlement to service connection for PTSD was denied in a March 2011 rating decision.  Although the Veteran was provided notice of the rating decision and notice of his appellate rights, he did not perfect an appeal, nor did he submit new and material evidence within one year of that decision.

2.  Evidence received since the March 2011 rating decision relates to unestablished facts regarding the Veteran's service connection claim for PTSD and raises a reasonable possibility of substantiating that claim. 

3.  The Veteran has a current diagnosis of PTSD related to his active duty service.  

4.  The Veteran has no current diagnosis of bilateral hearing loss for VA purposes.


CONCLUSIONS OF LAW

1.  The March 2011 rating decision that denied service connection for PTSD is final.  38 U.S.C.A. § 7105 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010); currently 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015).
  
2.  Evidence received to reopen the claim of entitlement to service connection for PTSD is new and material, and therefore, the claim is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

3.  The criteria for service connection for PTSD have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2015).

4.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015).  VA's duty to notify was satisfied by letters sent in April 2010 and July 2012.  38 U.S.C.A. § 5102, 5103, 5103A; 38 C.F.R. § 3.159.

The evidence includes the Veteran's service treatment records, service personnel records, VA treatment records, private treatment records, and lay evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran underwent a VA examination in connection with his claim for bilateral hearing loss in August 2012.  The Veteran underwent VA examinations in connection with his claim for PTSD in September 2010, June 2013, and March 2016.  After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  




II. New and Material Evidence

The RO denied the Veteran's claim of service connection for PTSD in a March 2011 rating decision, finding that the Veteran did not have a current PTSD diagnosis.  The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of notification of the decision.  Therefore, the March 2011 rating decision is final.  See 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011).

In February 2013, the Veteran filed a claim to reopen service connection for PTSD.  In a December 2013 rating decision, the RO granted service connection for an anxiety disorder, and reopened the service connection claim for PTSD, but denied it on the merits.  Regardless of what the RO has done in this case, the Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

The evidence received since the March 2011 rating decision includes two new VA mental health examinations, and Vet Center Records that show a current diagnosis of PTSD.  This new evidence addresses the reason for the previous denial; that is, a current PTSD diagnosis, and raises a reasonable possibility of substantiating the claim.  See 38 C.F.R. § 3.156.  Accordingly, the claim is reopened and will be considered on the merits.   

III. Analysis
	
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 each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); see also Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any material issue to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

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; 38 C.F.R. § 3.303.  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).

In order to establish 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); see also Pond v. West, 12 Vet. App 341 (1999).

Moreover, where a veteran served continuously for 90 days or more during  a period of war, or during peacetime service after December 31, 1946, and certain disabilities, including sensorineural hearing loss, and other organic diseases of the nervous system, become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. §§ 3.307, 3.309 (2015); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015).




	Hearing Loss

The Veteran seeks service connection for bilateral hearing loss, which he asserts was caused by in-service noise exposure.  Service records reflect that the Veteran served as a Builder in the Navy.  VA considers the rating of Builder to be associated with a high probability of noise exposure.

For VA compensation purposes, impaired hearing will be considered 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.

In October 2011 the Veteran underwent an audiological analysis with his private healthcare provider.  The examiner opined that the Veteran had normal hearing in his left ear, and hearing loss present in the right ear.  The results of the audiogram showed puretone thresholds, in decibels, as follows:



HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
0
0
5
LEFT
10
0
0
0
5

The Veteran underwent an August 2012 VA audiological examination, during which he reported concern about being able to understand speech, and stated that he preferred the television volume louder than those around him.  Speech recognition testing using the Maryland CNC word list revealed scores of 100 percent in the right ear and 98 percent in the left ear.  The examiner opined that the Veteran's hearing was within normal limits bilaterally at all test frequencies.  The results of the audiogram showed puretone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
0
0
5
LEFT
5
5
0
0
0

A January 2016 audiologic evaluation at the Green Bay VA audiology clinic noted pure tone air and bone thresholds indicated normal hearing of the broad frequency range of 250 to 8000 Hertz, bilaterally.  

The evidence of record does not contain a current diagnosis of bilateral hearing loss which meets the criteria for a hearing disability for VA purposes.  See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).  Although the rating of Builder has a high probability of noise exposure, and an October 2011 private treatment provider noted some hearing loss in the right ear, audiological testing did not show hearing loss sufficient to constitute a disability for VA compensation purposes.  See 38 C.F.R. § 3.385.  

The Veteran has asserted his concern about being able to understand speech and that he prefers the television volume louder than those around him.  The Veteran's assertions are competent evidence as to the presence of observable symptoms, such as difficulty hearing.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding the Veteran competent to testify to symptomatology capable of lay observation).  The Veteran, however, is only competent to diagnose simple conditions.  See Jandreau v. Nicholson, 492 F.3d 1372 n 4 (Fed. Cir. 2007) (explaining that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  The Board finds that a hearing loss disability for VA compensation purposes is not a simple condition capable of lay observation because the diagnosis requires audiometric testing.  See 38 C.F.R. § 3.385.  Thus, the Veteran's assertions are not competent evidence of a hearing loss disability that meets the criteria prescribed by VA regulations.  See 38 C.F.R. § 3.385; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007); Jandreau, 492 F.3d at 1376-77.

In the absence of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich, 104 F.3d at 1328.  Since there is no evidence the Veteran currently has hearing loss that meets the definition of a disability for VA purposes, service connection for bilateral hearing loss must be denied.  As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply.  See Gilbert, 1 Vet. App. at 53.

	PTSD

The Veteran seeks service connection for PTSD, which he asserts was caused by in-service trauma.  As previously noted, the RO granted service connection for anxiety disorder, but denied service connection for PTSD due to a lack of a current PTSD diagnosis.  

Service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders (DSM); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997).  

The Veteran asserted that his PTSD stressor occurred during his Iraq service when he drove over an improvised explosive device (IED) that detonated under his vehicle.  Personnel records from July 2006 verify the Veteran's reported stressor. 

The September 2010 VA examiner noted the Veteran had symptoms of PTSD that met the criteria for adjustment disorder with mixed anxiety and depression, but that there appeared to have been a remission of symptoms over time.  The examiner opined that it did not appear the Veteran's symptoms had a clinically significant impact on his daily functioning, and therefore, the Veteran did not meet the criteria for a mental disorder.  

The June 2013 and March 2016 VA examiners did not diagnose the Veteran with PTSD because in each instance the Veteran did not report the requisite number of symptoms to attribute a PTSD diagnosis.  During both examinations the Veteran was short one symptom for one criterion under the DSM criteria for a PTSD diagnosis.  Both VA examiners diagnosed the Veteran with anxiety disorder, and opined that the Veteran does experience occupational and social impairment. 

An April 2013 Green Bay Vet Center practitioner diagnosed the Veteran with PTSD using the DSM criteria.  The practitioner opined that the Veteran's PTSD is as likely as not due to exposure to traumatic events and the hyper-vigilant environment of combat during the Veteran's tour of duty in Iraq.  

The evidence of record contains conflicting medical evidence pertaining to whether the Veteran's symptoms meet the complete diagnostic criteria for PTSD.  In weighing opinions, the Board has the authority to consider the weight and probative value of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  In evaluating the probative value of competent medical evidence, the U.S> Court of Appeals for Veterans Claims has stated that the probative value of a medical opinion is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.  Further, the credibility and weight attached to these opinions are within the province of the adjudicator.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  As such, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 

Although the VA examiners who evaluated the Veteran did not diagnose him with PTSD, the Vet Center practitioner, who treated the Veteran on a bi-weekly basis, indicated that he did meet the complete DSM criteria for PTSD.  The VA examiners and Vet Center practitioner discussed the Veteran's medical history, evaluated the Veteran using the complete DSM criteria, and supported their opinions with reasoned medical explanations, and thus the Board finds them equally probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).  Accordingly, resolving any doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise with regard to whether the Veteran has a current PTSD diagnosis.  38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53.

In summary, the record documents a diagnosis of PTSD based on the DSM criteria, and a verified in-service stressor.  38 C.F.R. § 3.304(f).

Based on the foregoing, the Board finds that the probative, competent evidence supports the finding that it is at least as likely as not that the Veteran has PTSD which is causally or etiologically related to active duty service.  Therefore, service connection for PTSD is warranted.  38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53.


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for PTSD is granted.



____________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs