Citation Nr: 1801120	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO. 13-34 013	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1. Entitlement to a disability rating in excess of 10 percent for left knee laxity.

2. Entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for tinnitus.

4. Entitlement to service connection for heart disease, to include ischemic heart disease and as due to exposure to contaminated water at Camp Lejeune.

5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and mood disorder.

6. Entitlement to service connection for a low back disability, to include as secondary to service-connected left knee laxity. 



REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and J.C.-G.


ATTORNEY FOR THE BOARD

D. Cheng, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1973 to March 1976.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

In July 2017, the Veteran provided testimony in a video conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file.

A claim for service connection for a mental disability may encompass claims for any psychiatric disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes and the information the claimant submits or that the Secretary of VA obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the Veteran's claim for service connection for PTSD pursuant to Clemons and re-characterized it as shown on the cover page of this decision.

The issues of entitlement to service connection for a low back disability, to include as secondary to service-connected left knee laxity; and entitlement to service connection for a heart disease, to include ischemic heart disease and as due to exposure to contaminated water at Camp Lejeune are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. On July 17, 2017, prior to the promulgation of a decision in the appeal, the Board received explicit and unambiguous notification from the Veteran that a withdrawal of an issue on appeal; entitlement to a disability rating in excess of 10 percent for left knee laxity, is requested.

2. The Veteran does not have a current diagnosis of PTSD, under the Diagnostic and Statistical Manual of Mental Disorders (DSM)-IV or 5.

3. The Veteran does not have another psychiatric disorder, to include a mood disorder, which was incurred in, or otherwise related to active duty service.

4. The Veteran experienced in-service acoustic trauma.

5. After affording the Veteran the benefit of the doubt, the Veteran has a bilateral hearing loss disability for VA purposes that is related to his military service.

6. The Veteran's current tinnitus began during service and has continued since separation from service.

7. After affording the Veteran the benefit of the doubt, his current tinnitus is etiologically related to his in-service noise exposure.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal for the issue of entitlement to a disability rating in excess of 10 percent for left knee laxity have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2. The criteria for service connection for a bilateral hearing loss disability have been met. 38  U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).

3. The criteria for service connection for tinnitus have been met. 38  U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).

4. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and a mood disorder, have not been met. 38  U.S.C. §§ 1110, 1111, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 4.9, 4.125 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In an October 2013 statement, the Veteran requested VA's help in contacting his VA orthopedic surgeon, whom he indicated is currently retired. VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, and VA and private medical records. The Veteran has not identified any outstanding records needing to be obtained. VA's duty to assist does not include providing the Veteran the means of contacting retired VA medical professionals. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012). The Veteran was not afforded a VA examination for his claimed acquired psychiatric disorder because it is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, and there is insufficient medical evidence of record to decide the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. at 79. The claims do not meet the requirements for obtaining a VA medical opinion. The weight of the evidence demonstrates that no symptoms or diagnoses for an acquired psychiatric disorder present in service, the Veteran does not have a current diagnosis of PTSD, and there is no indication of record which attributes a mood disorder to service. Further, following multiple attempts by VA, the Veteran's PTSD stressors have not been verified.

Neither the Veteran nor the representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.

Withdrawal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (7). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. 
At the July 2017 hearing, the Veteran and his representative stated that the Veteran wanted to withdraw the issue of entitlement to an evaluation in excess of 10 percent for left knee laxity.  The undersigned confirmed this both prior to the hearing and during the hearing after the Veteran was sworn in.  The Board finds that the Veteran effectively withdrew this issue from the appeal.

Accordingly, there remain no allegations of errors of fact or law for appellate consideration in regards to the issue of entitlement to a disability rating in excess of 10 percent for left knee laxity. Accordingly, the Board does not have jurisdiction to review this issue on appeal and it is now dismissed.

Service Connection, Generally

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

In addition to direct service connection, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Tinnitus and hearing loss (organic diseases of the nervous system) are chronic conditions listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. See id.; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)). Service connection may also be established for tinnitus and hearing loss based upon a legal presumption by showing that a disorder 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. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). 

Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a) (2017). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury.

If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309(e). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service, a veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38  U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). 

"Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Nicholson, 20 Vet. App. 257 (2006). In order to establish qualifying "service in the Republic of Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. 

Despite the above, the United Stated Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed.Cir.1994). Therefore, the Board must not only determine whether a veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicide agents that were used in Vietnam, see 38 C.F.R. § 3.309(e), but must also determine whether his current disability is the result of active service under 38  U.S.C. § 1110 and 38 C.F.R. § 3.303(d). This determination may include actual exposure to herbicides as opposed to presumed exposure.

In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

Bilateral Hearing Loss

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 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. In evaluating claims of service connection for hearing loss disability, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran contends that service connection for a bilateral hearing loss disability is warranted because it was caused by his in-service exposure to acoustic trauma.

The Veteran has a current bilateral hearing loss disability for VA purposes. In June 2011, the Veteran underwent a VA audiological examination which showed that the Veteran's puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
40
40
40
LEFT
35
35
40
40
45

Following this examination, the VA examiner diagnosed the Veteran with mild sensorineural hearing loss bilaterally. The Veteran had a speech discrimination score of 94 percent in the right ear and 96 percent in the left ear following testing with the Maryland Consonant-Vowel Nucleus-Consonant (CNC) word list.

The Veteran's audiological examination in June 2011 showed at least one of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz at 40 decibels or greater; at least three of those frequencies at 26 decibels or greater; and a speech recognition score using the Maryland CNC test of less than 94 percent for the right ear. Under 38 C.F.R. § 3.385, the Veteran only needed to meet one of the criteria for his impaired hearing in the right ear to be considered a disability for VA purposes. The Veteran has shown all three criteria in the June 2011 VA audiological examination. The Veteran also showed a hearing loss disability in the left ear with at least one reading above 40 decibels and all of them above 26 decibels. Therefore, the evidence shows that the Veteran has a current bilateral hearing loss disability. Accordingly, the first element of service connection is met.

The Veteran was exposed to in-service acoustic trauma. The Veteran's Certificate of Release or Discharge from Active Duty (DD-214) indicates that while in the Marine Corps, the Veteran was an aircraft crash crewman and firefighter. Firefighter and various aircraft repair military occupational specialties (MOS) are noted in the Duty MOS Noise Exposure Listing in the M21-1 as having or "high" probability of hazardous noise exposure, in which cases the M21-1 provides that exposure to hazardous noise should be conceded. See M21-1, III.iv.4.B.3.d. The June 2011 VA examiner noted in his examination report that it is reasonable to assume that the Veteran was exposed to hazardous noise levels while in service. The Veteran testified at the July 2017 Board video conference hearing that his MOS was an air crash crewman and that he was exposed to acoustic trauma in service including jet engine noise, helicopter noise, and diesel engine noise.

Although the Veteran's service treatment records, including his separation examination, do not show symptoms of or complaints for bilateral ear hearing loss, there is ample indication that he was exposed to acoustic trauma in service due to his MOS in the Marine Corps. The Veteran's statements about his experiences are credible and consistent with the places, types, and circumstances of his service. See 38  U.S.C. § 1154(a) (2012). In light of the above, the Board finds that the Veteran was exposed to hazardous noise during his service.

The evidence supports a link, or nexus, between the Veteran's current right ear hearing loss disability and his in-service exposure to acoustic trauma. The June 2011 VA examiner opined that the Veteran's bilateral hearing loss disability was less likely than not caused by or a result of military noise exposure based on a lack of hearing damage while in service and no significant threshold shift beyond normal variability. However, at the July 2017 Board hearing, the Veteran testified that he had not been exposed to any type of hazardous noise that could compare to military service exposure. After affording the Veteran the benefit of the doubt and the Veteran's consistent, credible lay contentions of noise exposure in-service given his MOS, the Board finds that his bilateral hearing loss disability is etiologically related to service. 

For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for a bilateral hearing loss disability have been met. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, Gilbert, 1 Vet. App. at 49.
Tinnitus

The Veteran contends that service connection for tinnitus is warranted because it was caused by his in-service exposure to noise hazards.

The Veteran has tinnitus, or ringing in the ears, disability. During the July 2017 Board video conference hearing, the Veteran testified that he has ringing in his ears. In addition, the June 2011 VA examination showed that the Veteran has ringing in the ears. There is no medical test for tinnitus; thus, evidence of tinnitus symptoms is highly subjective. Tinnitus is a condition capable of lay observation and diagnosis; therefore, the Veteran is competent to report that he has tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Accordingly, the first element of service connection is met. 

As discussed previously, the Veteran was exposed to in-service acoustic trauma given his MOS. Although the Veteran's service treatment records, including his separation examination, do not show symptoms of or complaints for tinnitus, there is ample indication that he was exposed to acoustic trauma in service due to his MOS. The June 2011 VA examiner opined that the Veteran's tinnitus is less likely as not caused by or a result of noise exposure while in service. However, the Veteran's statements about his experiences are credible and consistent with the places, types, and circumstances of his service. See 38  U.S.C. § 1154(a) (2012). 

The June 2011 VA examination report shows that the Veteran reported that the ringing in his ears started while he was in the Marines. During the July 2017 Board video conference hearing, the Veteran testified that he has had ringing or buzzing in his ears since approximately 1974. The Veteran's consistent, credible lay contentions of tinnitus symptoms as beginning during service and continuing since service separation tend to show that his current tinnitus disability was incurred coincident with active service. See 38 C.F.R. §§ 3.303(a), 3.309. 

For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for tinnitus have been met. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, Gilbert, 1 Vet. App. at 49.

Acquired Psychiatric Disorder

Service connection for PTSD specifically requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (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. See 38 C.F.R. §§ 3.304(f), 4.125(a). 

The Veteran asserts that service connection for PTSD is warranted because it is caused by or otherwise related to his military service. During the July 2017 Board video conference hearing, the Veteran testified that he served in Saigon, Vietnam in 1975 and was responsible for loading body bags into aircraft. The Veteran also testified that while at Camp Lejeune, he was a crash crew member on the flight line and witnessed "several failed crashes and explosive[] deaths." The Veteran also contends that during November 1973 and June 1974, when he was assigned to crash crew and flight duty at Camp Lejeune, he was an initial responder and fireman for approximately a dozen accidents involving 50 deaths. In a September 2010 statement, the Veteran contended that he was responsible for loading several body bags and that some contained body parts only. The Veteran stated that this experience remained a traumatic memory and that it was a probable source of his sleep problems. 

The Veteran contends that he served in Vietnam. The Veteran stated that he served in Vietnam from March 1, 1975 to May 1, 1975 in a March 2010 VA Application for Compensation and/or Pension (VA Form 21-526). In a March 2010 statement, the Veteran asserted that he was assigned to MACV 5 USMC from March 1975 to May 1, 1975. There are no records to confirm the Veteran's assertion. A letter was sent to the Veteran on April 23, 2010 requesting the approximate dates of Vietnam service. In a September 2010 statement, the Veteran responded that he was in Saigon in March and April 1975. In a November 2010 letter, the Veteran also asserted that he served in Saigon in 1975 and indicated that he submitted his Certificate of Release or Discharge from Active Duty (DD Form 214). However, the Veteran's service personnel records indicate that he was stationed in Naples, Italy from December 7, 1974 to March 16, 1976. Personnel and service treatment records also reveal that the Veteran was in Naples, Italy in February, March, April, and June 1975. A March 1975 record shows that the Veteran attended orientation of the functions of NATO in Naples, Italy. The Veteran was admitted to U.S.N.H Naples in April 1975 for a ganglion excision from his right wrist. In the Veteran's April 1976 VA Application for Compensation or Pension, he indicated that he had a wrist injury that was incurred and treated for in Naples, Italy in May 1975. 

A Personal Information Exchange System (PIES) request was submitted in May 2010 to locate records which would substantiate the Veteran's dates of service in Vietnam. The request was completed in July 2010 and a response was provided that there is no evidence in the Veteran's file to substantiate any service in the Republic of Vietnam. The record contains a December 2010 VA memorandum indicating a formal finding on a lack of information required to verify in-country Vietnam Service. A letter was sent to the Veteran in December 2010 requesting additional details of the claimed PTSD stressors; to include a 60 day time frame and specific details regarding specific events at Camp Lejeune, and orders or documentation showing assignments; however no further details were provided by the Veteran. Finally, in an April 2017 Formal Finding, the RO indicated that it had been determined that the information required to corroborate the stressful events described by the Veteran was insufficient to allow meaningful research of Marine Corps or National Archive and Records Administration (NARA) records. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran served in Vietnam at any point and finds that the Veteran's claimed in service stressors from Vietnam and Camp Lejeune are unverified.

The preponderance of the evidence is against a finding that the Veteran has a diagnosis of PTSD, which conforms to DSM-5 (or even DSM-IV), as specifically required for service-connection for PTSD. See 38 C.F.R. §§ 3.304(f), 4.125(a). The Veteran testified during the July 2017 Board video conference hearing that his doctor said he had PTSD. The Veteran reported that the doctor, the head of the VA Cardiology department, told him that he would need classes for his PTSD. The Veteran further testified that he had never been seen by a mental health professional. Depression screens were performed and were negative in May 2005, October 2007, July 2008 and May 2009 VA medical records. VA medical records, including April 2005, May 2005, and February 2010, reveal negative PTSD screens. A March 2010 VA medical record reflects that the Veteran's mental status was alert and orientated to person, place, and time. The Veteran denied a history of emotional and behavioral difficulties including depression and PTSD.

A March 2010 VA record indicates that the Veteran had mood swings and admitted to anger episodes, however the Veteran indicated that he was not interested in ay mental health intervention. While the record includes medical records reflecting treatment with medication and a previous diagnosis of a mood disorder, these records do not directly provide a positive nexus regarding the onset, etiology, or relationship to the Veteran's military service. Further, the Veteran has since discontinued treatment and recent VA medical records do not reflect current treatment for a mood disorder, specifically, a March 2017 record indicates that it is only under observation. 

The Board has also reviewed service treatment records and personnel records for any indication that an acquired psychiatric disability was incurred in service or otherwise caused by service and finds no such indication. The Veteran's March 1976 service separation examination included a normal clinical evaluation for the Veteran's psychiatric state. Moreover, in the accompanying Report of Medical History, the Veteran denied "frequent trouble sleeping;" "depression or excessive worry;" "loss of memory or amnesia;" and nervous trouble of any sort." The Veteran also answered "no" when asked if he had ever been treated for a mental condition. The Board finds that an acquired psychiatric disability did not have its onset in service.

The Veteran has not offered probative and competent medical evidence establishing a nexus between an acquired psychiatric disorder, to include PTSD and a mood disorder; and service. Lay evidence may be competent to establish medical etiology or nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). A diagnosis of an acquired psychiatric disorder requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. The Board notes that while the Veteran testified that his cardiologist stated that he had PTSD, there are no medical records to support this assertion and the cardiologist is not a mental health professional. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value.

Absent competent, credible, and probative evidence of a nexus between the Veteran's service and an acquired psychiatric disorder, the Board finds that the does not currently have an acquired psychiatric disorder; to include PTSD and a mood disorder that was incurred in-service or otherwise related to active service as the Veteran has not offered competent medical evidence in support of his claim. See 38 U.S.C. § 5107(a) ("A claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "whether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). Accordingly, service connection for an acquired psychiatric disorder is not warranted.

The preponderance of the evidence is against the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and mood disorder, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.


ORDER

The appeal on the issue of entitlement to a disability rating in excess of 10 percent for left knee laxity has been withdrawn and is dismissed.

Entitlement to service connection for a bilateral hearing loss disability is granted.

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and a mood disorder, is denied.



REMAND

A review of the record discloses further development is needed with respect to the Veteran's claims of entitlement to service connection for a low back disability, to include as secondary to service-connected left knee laxity; and entitlement to service connection for a heart disease, to include ischemic heart disease and as due to exposure to contaminated water at Camp Lejeune.


Low Back Disability

The Veteran contends that his low back disability was incurred in service or otherwise related to service to include as secondary to his service-connected left knee laxity. A March 2017 VA medical record indicates that the Veteran has chronic lower back pain and multilevel degenerative disc disease. 

During the July 2017 Board video conference hearing, the Veteran testified that while in service, in responding to an emergency call, his partner "rugged up the engines and forgot the emergency brakes" and the vehicle went backwards. The Veteran asserted that his leg got caught in the back end of the wheel well and that his body was slammed back and forth against the casing resulting in being "black and blue" the following morning. The Veteran contends that this was the same incident that caused his currently service-connected left knee disability and that his low back disability is secondary to his left knee disability. Therefore, the Board finds that the Veteran should be afforded a VA examination to confirm a diagnosis of a back disability, determine severity, and provide etiology opinions to include whether or not it was caused by or aggravated by service-connected left knee laxity, if applicable.

Heart Disease

The Veteran asserts that service connection for heart disease is warranted because it is caused by or otherwise related to service, to include exposure to contaminated water at Camp Lejeune. The Veteran proffered an August 2018 letter from a VA staff cardiologist. The cardiologist indicated that the Veteran has a history of ischemic heart disease and was exposed to several volatile organic compounds (VOC) and lead in the drinking water. He added that the causal relationship between VOC and heart disease has not been established however, lead has been shown to be associated with coronary artery disease and cited to Environ Health Perspect. 2007 March; 115(3); 472-482). The cardiologist opined that it is as likely as not that the Veteran's current heart condition is linked to contaminated water at Camp Lejeune, NC and exposure to Agent Orange in Vietnam.

The Veteran was afforded a VA examination in June 2011. The examiner found that the Veteran had an idiopathic dilated cardiomegaly without ischemic heart disease. The examiner added that there is no evidence in literature that dilated cardiomyopathy is a sequelae of chemicals in the water at Camp Lejeune and therefore is considered to be less likely as not caused by or a result of Camp Lejeune water contamination. 

The Board has found that the preponderance of the evidence is against a finding that the Veteran had "service in the Republic of Vietnam" as discussed above. Therefore, given the conflicting opinions, the Board finds that a remand is warranted to address the nature and etiology of any heart disease as it relates to service, to include exposure to water at Camp Lejeune but not herbicide exposure in Vietnam.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination for his claimed back disability, to determine the nature, extent, and etiology of the claimed disability. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The Veteran's claims file should be reviewed by the examiner in conjunction with the examination. The rationale for all opinions expressed must be provided. 

The examiner is informed that the Veteran is service-connected for left knee laxity. Further, symptoms such as pain alone are not disabilities in the absence of an underlying disease or injury for VA disability compensation purposes.

The examiner is asked to answer the following questions: 

a. Whether the Veteran has a current diagnosis of a back disability? If so, is it at least as likely as not (50 percent or greater likelihood) to have had its onset in service or is otherwise related to service?

b. If the answer to a. is negative, is it at least as likely as not (50 percent or greater likelihood) that the back disability is caused by the service-connected left knee laxity?

c. If the answer to b. is negative, is it at least as likely as not (50 percent or greater likelihood) that the back disability is aggravated (permanently worsened beyond the natural progression of the disease) by the service-connected left knee laxity? proximately due to or, alternatively, 

The examiner is asked to provide a rationale for any opinion given.  

2. Return the Veteran's claims file to the June 2011 VA examiner who provided the medical opinions on the Veteran's heart disability or to a qualified medical professional if the examiner is unavailable, to provide an addendum opinion. If the examiner finds that an examination is necessary, then schedule an examination. If an examination is scheduled, any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The rationale for all opinions expressed must be provided. Based on examination results (if applicable) and a review of the record the examiner should identify any heart disabilities present.

The examiner is to review the entire record, examine the Veteran, if determined necessary. 

The examiner's attention is drawn to the following statement from an August 2018 letter from a VA cardiologist: 

"In Camp Lejeune, he [the Veteran] was exposed to several volatile organic compounds (VOC) and lead in the drinking water. The causal relationship between VOC and heart disease has not been established. However, lead has been shown to be associated with coronary artery disease. (See Environ Health Perspect. 2007 March; 115(3); 472-482). In summary, it is as likely as not that the Veteran's current heart condition is linked to contaminated water at Camp Lejeune, NC and exposure to Agent Orange in Vietnam."

The examiner is notified that the Veteran did not serve in Vietnam and therefore is not presumed to have been exposed to herbicides (Agent Orange).

The examiner is asked to answer the following question: 

Whether any diagnosed heart disability, is at least as likely as not (50 percent or greater likelihood) incurred in service, caused by, or otherwise related to service, to include exposure to water at Camp Lejeune? The examiner is to address the August 2018 opinion from the VA cardiologist.

A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

3. After the above is complete, readjudicate the Veteran's claims. If any claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. 

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs