Citation Nr: 18142416 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-39 679 DATE: October 15, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran does not have bilateral hearing loss for VA purposes. 2. The medical evidence of record does not confirm that the Veteran has a diagnosis of PTSD and there is no evidence that any psychiatric disorder is etiologically related to any disease, injury, or incident in-service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107 (b) (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. § 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 3.307, 3.309, 4.125 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to December 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board notes that in an October 2014 notice of disagreement and the September 2018 Appellate Brief, the Veteran asserts that his diagnosed HIV is related to service and subsequently caused his PTSD. The Board notes that the Veteran was previously denied service connection for AIDS in an August 1994 RO rating decision. The Veteran did not appeal this decision and that decision became final. Thus, the Board directs the RO to determine whether the Veteran would like to submit a claim for HIV. If so, the RO must provide the Veteran with the appropriate documents to file a claim. The Board notes that the Veteran has asserted one theory of entitlement for his PTSD, that his HIV caused his psychiatric condition. However, as discussed below, there is no diagnosed psychiatric condition, to include PTSD. Therefore, the Veteran’s claim of entitlement to service connection for PTSD can be adjudicated. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, sensorineural hearing loss and tinnitus, will be presumed to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more within one year of a veteran’s separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to “chronic diseases” enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a “second route by which a veteran can establish service connection for a chronic disease” under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during the] presumptive period.” Id. (holding that section 3.303(b) provides an “alternative path to satisfaction of the standard three-element test for entitlement to disability compensation”). 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 medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for bilateral hearing loss Hearing loss disability is defined by regulation. For the purposes of applying the laws 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, 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. Unfortunately in this case, the evidence of record does not demonstrate a current diagnosis of bilateral hearing loss for VA purposes. The December 2010 VA examination does not reflect auditory threshold of 40 decibels or greater in one frequency; or 26 decibels or greater in at least three frequencies in either ear. During the December 2010 VA examination, the Veteran had word recognition score of 98 percent in the left ear and 100 percent in the right ear. These findings are not sufficient to establish a current hearing loss disability for VA purposes. Moreover, the VA examiner opined that the Veteran did not have current hearing loss. The Board has considered the Veteran’s lay statement that he has bilateral hearing loss. However, the issue of whether there is hearing loss for VA purposes is medically complex and requires specialized knowledge and experience. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). There is no indication that the Veteran has the medical training to self-test his hearing for puretone thresholds or Maryland CNC speech recognition results that would reveal bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. Absent evidence showing current bilateral hearing loss for VA purposes, service connection for bilateral hearing loss is not warranted and the Board need not discuss the other two elements of a service connection claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (‘In the absence of proof of a present disability there can be no valid claim’). The evidence weighs against a finding of a hearing loss disability as defined by 38 C.F.R. § 3.385 at any time in the appellate period or relevant to the appellate period. The preponderance of the evidence in the record is against the claim, as such the appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107 (b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claim. 2. Entitlement to service connection for PTSD Service connection may also be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker. Although “psychoses” are one of the enumerated conditions, for the purposes of 38 C.F.R. § 3.309 (a), the term “psychosis” only includes diagnoses of brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. § 3.384. As the Veteran’s diagnoses of record do not reflect psychoses, service connection on a presumptive basis as a chronic disease is not warranted. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §§ 3.304 (f), 4.125 (2017); see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). As to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-V). The Veteran served in the military during peacetime and did not engage in combat with the enemy. See 38 C.F.R. § 3.304 (f)(1); see also, 38 U.S.C. § 1154 (b). Therefore, the law requires verification of a claimed stressor. Service treatment records are silent for complaints, treatment, or diagnosis of a psychiatric condition. A January 2011 memorandum noted a formal finding on the lack of information required to verify stressor in connection with the Veteran’s PTSD claim. In an October 2014 notice of disagreement, the Veteran stated that he was exposed to exploding bombs while on night patrols, which he stated was linked to his PTSD. There is no evidence in the file that the Veteran was treated for or reported PTSD or PTSD symptoms in service. Therefore, the only avenue for entitlement to service connection for PTSD that would not require corroboration is based upon “fear of hostile military or terrorist activity” under 38 C.F.R. § 3.304 (f)(3). The Veteran has not described any stressor resulting in fear of hostile military or terrorist activity consistent with the places, types, and circumstances of his service. Accordingly, 38 C.F.R. § 3.304 (f)(3) does not apply. As such, in order for service connection to be granted, corroboration of his stressors is required. The Board finds that there is no competent and credible evidence which supports corroboration of the Veteran’s claimed stressor. Post-service treatment records do not show a diagnosis for any psychiatric condition, to include PTSD. Further, there is no indication in his service records of exposure to bombs exploding while on night patrol. In fact, service records show that the Veteran remained stateside during his active duty service. As noted above, the Veteran served during peacetime. Accordingly, as there has been no corroboration of the Veteran’s stressors, service connection for PTSD on that basis is denied. Although the Veteran asserts that he suffers from PTSD, the Veteran’s in-service treatment records reveal no diagnosis of PTSD, and there is no diagnosis of PTSD in the Veteran’s post-service treatment records. Therefore, there is no evidence in the available record to support the Veteran’s claim of PTSD, and the Veteran does not have the first element necessary for service connection for PTSD, medical evidence diagnosing the condition. See Brammer, 3 Vet. App. 223 (1992) (must have a current disability); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (requirement of current disability is satisfied when claimant has disability at time claim filed or during pendency of that claim, even if it resolves prior to adjudication of claim); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (recent diagnoses predating filing of claim are relevant evidence in determining whether a current disability existed at time claim was filed or during its pendency). Based on the absence of a current diagnosis of PTSD, the Board finds that the preponderance of the evidence is against the claim, and service connection for PTSD is denied. To the extent that there are diagnoses of PTSD, adjustment disorder, depression, and schizophrenia contained in the post-service treatment records, these diagnoses are dated prior to the Veteran’s 2010 claim for service connection and the current records do not reflect diagnoses for these psychiatric disorders. Additionally, the Board notes that the prior diagnosis of PTSD was attributed to a motor vehicle accident the Veteran was involved in years after service in August 1985. Thus, the Board finds that the preponderance of the evidence in the record is against the claim, as such the appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107 (b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claim. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel