Citation Nr: 1751933 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 15-05 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and a nervous condition. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD S. Medina, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1949 to December 1952 and from February 1953 to February 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Bilateral hearing loss was not shown during service or within one year following discharge from service, and the most probative evidence indicates the current bilateral hearing loss disability is not related to service. 2. Tinnitus was not shown during service or within one year following discharge from service, and the most probative evidence indicates the current tinnitus is not related to service. 3. A chronic acquired psychiatric disability, to include PTSD and/or a nervous condition, was not shown in service or for many years thereafter, and the most probative evidence is against a finding that the Veteran suffers from a psychiatric disorder that is related to service. 4. The Veteran is not service-connected for a single disability and the evidence is insufficient to establish that he is unemployable as a result of service-connected disabilities. CONCLUSION OF LAW 1. The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for establishing service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD and a nervous condition, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 4. The requirements for establishing entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss, tinnitus, or a psychosis become manifest to a degree of 10 percent within one year from 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) 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. "[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence required to support the occurrence of an in-service stressor varies depending on whether the Veteran was engaged in combat with the enemy. Gaines v. West, 11 Vet. App. 353, 358 (1998). If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of such Veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where the record does not establish that a veteran engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, he must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). Where a claimed noncombat in-service stressor is related to the Veteran's fear of hostile military or terrorist activity and a VA (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 that stressor, then, in the absence of clear and convincing evidence to the contrary, and where the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone will establish the occurrence of the claimed in-service stressor. "Fear of hostile military or terrorist activities" means that a Veteran experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, 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). 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); 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 issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Hearing Loss & Tinnitus The Veteran contends that his bilateral hearing loss and tinnitus are a result of his service, thereby warranting service connection. As an initial matter, the record reflects the Veteran has been diagnosed with bilateral hearing loss and tinnitus as shown on the February 2014 VA examination. Accordingly, the first criterion for establishing service connection, a current disability, has been met. The question becomes whether these disabilities are related to the Veteran's active duty service. On this question, there are opinions both in favor and against the claim for service connection. Service treatment records contain the Veteran's January 1956 separation examination. At that time, the Veteran's hearing was 15/15 bilaterally upon whispered voice test. Following service, VA treatment records are silent as to any treatment for, complaints or diagnoses of hearing loss and/or tinnitus. In sum, a bilateral hearing loss disability and/or tinnitus was not shown in service or within one year following separation from service. As such, in order to establish service connection, competent evidence linking the conditions to service is required. In April 2013, the Veteran's private physician submitted a written statement that the Veteran had a history of a bilateral hearing loss problem and described the difficulties the Veteran faces as a result of his hearing loss. The physician provided a positive nexus opinion as to the etiology of the Veteran's hearing loss. In support, the physician explained that prolonged exposure to noises of high intensity causes permanent damage in the inner structures of the ear, resulting in irreversible hearing loss. Thus, the physician concluded that because the Veteran was exposed to high frequency noise due to arms fire and heavy weapon noise as an infantry soldier, the physician opined that the Veteran's hearing loss was at least as likely as not related to due to his military service. In February 2014, the Veteran underwent VA examination in connection with his claims for service connection for bilateral hearing loss and tinnitus. At that time, the audiogram showed pure tone thresholds of 30, 35, 75, 80, and 70 decibels in the right ear and 30, 35, 40, 40, and 45 decibels in the left ear at the specified frequencies. The audiologist also noted that the Veteran reported current tinnitus, which he stated, began about one or two years ago, but could not indicate the circumstance of the onset of tinnitus. The audiologist concluded that the Veteran has a diagnosis of bilateral sensorineural hearing loss and that his tinnitus is at least as likely as not a symptom associated with hearing loss. However, the audiologist opined that it was less likely than not that the Veteran's bilateral hearing loss was related to his military service. In this regard, the examiner explained that there was no evidence of hearing loss and tinnitus attributable to military service during the Veteran's active duty service from June 1949 to December 1952, even after being exposed to high intensity noise levels. Moreover, at his January 1956 separation examination, the hearing test performed was a whispered voice test; however, this test is not a reliable test to identify the presence of hearing loss. The audiologist remarked that there is no evidence of complaints of hearing loss or tinnitus in the Veteran's claims file for more than 50 years after separation from service and stated that this was a young Veteran with no history of ear/hearing related health problems when he enrolled in the Army. Therefore, the audiologist stated it is highly probable that the current VA examination shows a bilateral hearing loss that is due to presbycusis, or hearing loss expected as a result of the normal aging process. As a result, the audiologist concluded that the Veteran's hearing loss and tinnitus were less likely than not related to his military service. In weighing the opinions of record, great weight is given to the opinion of the June 2014 VA examiner. The 2014 VA examiner's opinion was supported by the physical evaluation of the Veteran and a review of his treatment history both during and after service. Moreover, the opinion also considered the Veteran's reported history and provided an adequate rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from sound reasoning). Conversely, the opinion from the private physician is unaccompanied by a citation to clinical findings during service, and it is not shown to have been based on a review of the Veteran's claims file, or (in any event) any other detailed and reliable history. Thus, the Board finds the opinion is entitled to minimal, if any, probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board has also considered the buddy statement submit by a fellow servicemember who served with the Veteran in Korea regarding the Veteran's hearing loss. In this regard, the servicemember's statement was conclusory at best as to the etiology of the Veteran's hearing loss and service. Specifically, the statement describes the poor conditions that the Veteran and the servicemember faced while stationed in Korea and only mentions that both he and the Veteran suffered severe ear injuries, which they were told to report as soon as they could get to a station or general hospital. In addition, the servicemember also stated that how he remembered that the Veteran's ear had "stuff coming out of at the time and it was stinky," and that "they always put you and me up on the hill tops listening posts, but neither one of us could hear." Although the Veteran and his witness contend that his bilateral hearing loss and tinnitus are related to service, as lay persons, they have not shown that they have specialized training sufficient to render such an opinion. In this regard, the diagnosis of hearing loss and etiology of a hearing loss and/or tinnitus are matters not capable of lay observation and require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Accordingly, the Veteran and his witness's opinion as to the diagnosis of hearing loss or etiology of his hearing loss and/or tinnitus is not competent medical evidence and the Board finds the February 2014 VA examiner's opinion to be more probative than the Veteran's lay assertions. In summary, a bilateral hearing loss disability, to include tinnitus, was not shown in service or for many years thereafter, and the most probative evidence indicates the conditions are not related to service. Accordingly, the claims for service connection are denied. B. Acquired Psychiatric Disorder, to include PTSD and a Nervous Condition The Veteran is seeking service connection for PTSD and a nervous condition based on his experiences during his tour of active duty in Korea. He described in-service stressors that are related to fear of hostile military or terrorist activity. In this regard, in a written statement submitted by the Veteran, he stated that after arriving in Korea in 1950, while occupying his position in the security platoon, enemy soldiers infiltrated his command post and were firing at him and witnessing the death of several fellow soldiers. The Veteran's service treatment records are silent as to any treatment for or diagnoses of any mental health condition, to include PTSD or a nervous condition. The Veteran's service personnel records show that he was awarded the Korean service medal with three bronze stars, combat infantry badge, and the bronze star medal. Moreover, of record is the citation for the bronze star medal which notes that the during August 1950 to November 1950, the Veteran served as a member of the security platoon of the 23rd Infantry Regiment, while that unit was engaged in military operations against an armed enemy in Korea. In addition, per the April 2013 private medical opinion, the Veteran's physician described the Veteran presenting with continuous sleep problems, nightmares, and flashbacks of traumatic incidents he had in service. The physician noted that the Veteran was nervous and hypervigilant, having the feeling that something could happen and that he also does not tolerate loud noises or being in crowded places because he enters in an anxious state. Further, the physician noted that, in an adaptive attempt, he makes the effort to avoid recollection of the event and avoidance of circumstances that evoke recall. She stated that he gets very irritant and anxious, pays special attention at exits at places he is not used to being at, has recurring intrusive thoughts of the traumatic experience which he is uncomfortable sharing or talking about with anyone, and becomes upset when reminded of the traumatic event. Given the above, the Board finds that the presence of an in-service stressor related to the fear of hostile military or terrorist activity has been established. Thus, the question becomes whether the Veteran suffers from PTSD or other psychiatric disorder as a result of his service. On this point, there are opinions both in favor and against the claim. In this regard, the April 2013 private physician stated that the Veteran had incidents while in Korea where his life was at risk of death, he experienced multiple attacks, witnessed the death of fellow soldiers, and was in a combat zone where he was in contact with the enemy. She explained that the Veteran remembers how brutally soldiers were killed and what bodies looked like after attacks. As a result, she stated that there is medical evidence diagnosing the condition as PTSD, credible evidence that the claimed in-service stressor actually occurred, and there is medical evidence of a link between the current symptomatology and the claimed in-service stressor. Thus, she opined that it was as least as likely as not that the Veteran is presenting with PTSD or a nervous problem that is service-connected. The Veteran underwent VA examination in February 2014. The Veteran described an in-service stressor as "I was in Korea one month after the war started, we worked as security and we needed to do holes and I heard a noise which was the tank of the North Korean soldiers and they started shooting at us and our company, they surrounded us and I went down like I could, rolling...that was our first encounter...and I saw a lot of soldiers being executed and thrown in a hole." However, the Veteran denied mental symptoms or treatment and the examiner stated that the Veteran did not meet the diagnostic requirements for PTSD. In fact, the examiner opined that there was no evidence of a mental condition at the time of the examination. In weighing the opinions of record, great weight is given to the opinion of the February 2014 examiner. The VA examiner's opinion was based upon examination of the Veteran, review of the medical records, and supported by detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (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). Conversely, the opinion from the April 2013 private physician did not identify the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV or V) criteria that support the diagnosis nor was the claims file reviewed, or (in any event) any other detailed and reliable history. Thus, the Board finds the opinion is entitled to minimal, if any, probative weight. See Stefl, 21 Vet. App. at 124. Although his private physician provided a positive opinion regarding his mental health conditions, the Board finds it troublesome that the Veteran denied any mental health symptoms or treatment during his February 2014 VA examination. Thus, the Board finds the statements made to the 2014 VA examiner denying any mental health condition or treatment for such more probative than his contentions as outlined by the 2013 private physician. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). Also persuasive, VA treatment records dated from December 2012 to September 2013 are silent as to any complaints of a mental health condition. Indeed, a December 2012 VA preventative medicine education note reveals that the Veteran was found to be negative for a mental health screen and a functional status screen at that time revealed that the Veteran was self-independent for all activities of daily living. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). Further, although it is true that no private treatment records from the physician who provided the 2013 positive opinion were obtained, this was dependent upon the Veteran providing authorization to obtain past medical records from private sources where he received care, which to date, he has not provided. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). In fact, the Veteran submitted his signed VCAA acknowledgement in February 2014 and checked that he had no additional evidence to submit. To the extent the Veteran's claim for service connection for a nervous condition was not mooted by the denial of service connection for PTSD, see Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board finds that service connection for a nervous condition is also not warranted. As mentioned, during service and following service, there is no medical evidence of record regarding any treatment for or complaints of an mental health condition, until April 2013, approximately 50 years after separation from his active duty service. Although the Veteran believes that he suffers from PTSD or a nervous condition that is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of an acquired psychiatric disorder, to include PTSD and a nervous condition are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his claimed nervous condition is not competent medical evidence. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that "[i]n the absence of proof of a present disability, there can be no valid claim"). In this case, there is no competent medical evidence of record showing that the Veteran has a current nervous condition, or had such during the course of the claim. Accordingly, as the there is no competent evidence of a current disability, there is no basis upon which service connection can be awarded. Thus, the claim for service connection for a nervous condition is denied. In summary, a psychiatric disorder was not shown in service or for many years thereafter, and the most probative evidence is against a finding that the Veteran's claimed PTSD and nervous condition are causally related to service. Accordingly, the preponderance of the evidence is against the claims, and service connection is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. C. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran is not service-connected for a single disability. Accordingly, he does not meet the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of a veteran who is unemployable by reason of a service-connected disability, but who fails to meet these schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. § 4.16(b). In order to establish entitlement to a TDIU, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). The question in a TDIU claim is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. A high disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or to the impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose, 4 Vet. App. 361. Upon review of the record, the Board finds that the preponderance of the evidence is against the claim. The record shows that the highest level of education attained by the Veteran was a Bachelor's degree in accounting. The record also reveals that the Veteran was employed as an accountant, from 1980 until January 1993. Although he reported on his VA Form 21-8940 that he left his last job due to his disability, he did not give the facts of this circumstance. In addition, he marked that he did not expect to receive disability retirement benefits and that he has tried to obtain employment since he became too disabled to work. The Board acknowledges the Veteran's contention that he is entitled to TDIU; however, during the 2014 VA examination, the Veteran stated that he completed a Bachelor's degree in accounting during his active duty service and worked as such with the state government for 18 years, until he retired after being eligible for age and duration of work. Other than the Veteran's contention that he is entitled to TDIU, there is nothing in the record to support that the Veteran is rendered unemployable due to service-connected disabilities. For the reasons discussed above, the Board finds the Veteran's statements regarding his employment history and the findings on the 2014 VA examination to be of greater probative weight than the Veteran's contention that he is entitled to TDIU. In sum, the most probative evidence shows that the Veteran is not service-connected for any disability and was not rendered incapable of performing the physical and mental acts required by employment due to a service-connected disability. See Van Hoose, 4 Vet. App. at 363. Accordingly, referral for extraschedular consideration of TDIU is not warranted. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and a nervous condition is denied. Entitlement to TDIU is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs