Citation Nr: 18144991 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-25 814 DATE: October 25, 2018 ORDER Service connection for a bilateral toe disability claimed hammer toes is denied. Service connection for left ear hearing loss is denied. Service connection for sleep apnea is granted. Service connection for an acquired psychiatric disorder to include post traumatic stress disorder (PTSD) and sleep disorder is denied. Service connection for a left knee condition is denied. Service connection for an ear condition is denied. Service connection for hypertension is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has bilateral toe disability, diagnosed as hammer toes, that began in service or that is due to a disease or injury in service. 2. The preponderance of the evidence fails to establish that the Veteran has a current left ear hearing loss disability for VA purposes. 3. Resolving all doubt in favor of the Veteran, sleep apnea was incurred during active duty service. 4. The preponderance of the evidence is against finding that an acquired psychiatric disorder to include PTSD and sleep disorder began during active service, or is otherwise related to an in-service event. 5. The Veteran’s left knee disability to include degenerative joint disease, did not manifest in service or within the applicable presumptive period; and it is not otherwise etiologically related to an in-service injury, event, or disease. 6. The preponderance of the evidence is against finding that a chronic ear disability (infections) began during active service, or is otherwise related to an in-service injury, event, or disease. 7. The Veteran’s hypertension did not manifest in service or within the applicable presumptive period; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for toe disability, claimed as bilateral hammer toes, have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. 3. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for an acquired psychiatric disorder to include PTSD and sleep disorder are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f). 5. The criteria for service connection for left knee disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 6. The criteria for service connection for ear disability (infections) are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to August 1992. Although the Veteran submitted a claim for PTSD, the Board has recharacterized the issue as a claim for an acquired psychiatric disability, generally. The Veteran cannot be required to know whether the symptoms she is claiming service connection for are related to PTSD or another psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). For explicitly recognized chronic diseases (38 C.F.R. § 3.309(a)), service incurrence or aggravation may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For hypertension and arthritis, the disability is considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). 1. Entitlement to service connection for a bilateral toes condition The Veteran contends that VA compensation is warranted for hammer toes that began in August 2009. See VA Form 21-526 (November 2011). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of hammer toes, the preponderance of the evidence weighs against finding that her condition began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records show the Veteran was not diagnosed with hammer toes until 2009, more than a decade after her separation from service. She is not competent to link her condition to active duty service. To the extent that she suggests onset in service, the Board finds that this is not credible in view of service treatment records (STRs). STRs show no complaints or findings for abnormal toe pathology; and August 1992 service separation examination reflects normal clinical evaluation of the feet and that the Veteran denied any history of foot trouble or swollen, painful joints. A July 1994 National Guard exam similarly showed normal clinical evaluation of the feet. The Veteran acknowledged on her VA claim for benefits that she received no treatment for the condition prior 2009. Notably, she has not identified nor provided any favorable medical evidence linking the claimed disorder to her active duty service. Hence, there is no such evidence to weigh in this matter. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for left ear hearing loss The Veteran contends that she has hearing loss related to active duty. The Board concludes that she does not have a left ear hearing loss disability for VA purposes. 38 C.F.R. §§ 3.303, 3.385. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 dB. Higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 156 (1993). 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, 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 (2017). A July 2012 VA audiological examination showed hearing acuity at 20 dB or better at 500, 1000, 2000, 3000, and 4000 Hertz frequencies. Speech discrimination was 100 percent. A hearing loss disability as defined at 38 C.F.R. § 3.385 is not shown. The Board has considered the Veteran’s report of hearing loss. However, although she is competent to describe symptoms, she is not competent to establish the existence of a hearing loss disability as defined by 38 C.F.R. § 3.385 as this requires specialized testing by a trained professional and, unlike diminished hearing acuity, hearing loss disability for VA purposes is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007. Therefore, the Board finds that the Veteran’s opinion has no probative value and assigns greater probative value to the normal July 2012 VA audiological examination. This examination was prepared by a skilled, neutral medical professional and contains the requisite audiometric testing required by VA regulations. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for sleep apnea The Veteran contends that she has sleep apnea related to service and that she has been treated for this condition since July 2011. See VA Form 21-526 (November 2011). The Board concludes that the Veteran has a current diagnosis of sleep apnea that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A June 2011VA treatment records show the Veteran was diagnosed with obstructive sleep apnea and subsequently dated VA treatment records reflect ongoing care. A November 2015 private medical opinion reflects that sleep apnea was most likely present in service based on review of the claims file and lay evidence discussing the Veteran’s symptoms during service. The evidence is competent and credible. The medical opinion includes a complete rationale for the opinion. There is no negative medical opinion to weigh in this matter. Accordingly, resolving all doubt in favor of the Veteran, the claim is granted. 38 U.S.C. § 5107(b). 4. Entitlement to service connection for an acquired psychiatric disorder to include sleep disorder. The Veteran she has psychiatric disability, including PTSD and sleep problems, related to service while stationed in Germany around January 1991. She argues her problems were caused by becoming pregnant in June 1990 while her unit was on high security alert; that in December 1990, she was no longer able to sleep at her home and instead slept on a couch at headquarters with a loaded weapon. She reported having dreams of blowing her head off due to the “Gulf War situation.” She noted that she gave birth to a child 5-weeks early. See VA Form 21-0781. In support of the claim, VA received lay evidence including a December 2014 statement from M.B. (sister) noting that the Veteran has a mental condition and she had behavioral changes since leaving military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has expressed symptoms of anxiety, depression and sleep disturbance, and she has been assessed with an adjustment associated with caregiver stress, the preponderance of the evidence is against finding that an acquired psychiatric disorder including PTSD and sleep disorder began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304(f). STRs reflect no complaints or findings for psychiatric disorder. August 1992 service separation examination reflects normal evaluation of the psychiatric system, and the Veteran denied a history of frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. Reserves exam dated July 1994, two years after service separation, similarly reflects normal clinical evaluation of the psychiatric system. VA treatment records dated as early as 2002 reflect that the Veteran was followed for blood pressure, but reflect no psychiatric complaints until 2008. During October 2008 VA treatment, the Veteran complained she could not sleep; worked nights; had nightmares during the day; had stress about her daughter; and lived with a demanding father. She denied depression. The assessment was stress. A November 2008 PTSD screen was negative. A January 2009 VA note showed that the Veteran had poor sleep related to family problems. The examiner noted that there was no PTSD. The Veteran denied combat and military sexual trauma during active duty from 1985 to 1992; she was stationed in German during active duty. The impression was adjustment reaction to caregiver stress (care of her father) with symptoms of insomnia, fatigue, alcohol abuse, episodic binging, self-medicated sleep, and tension. VA received the Veteran’s claim of entitlement to PTSD in 2011. Subsequently, she reported a history of PTSD during February 2015 VA treatment. An August 2015 PTSD screen showed “positive risk,” but it was noted that there was no diagnosis. A July 2016 VA treatment note reflects a past medical history for PTSD. The available medical evidence shows no indication that the Veteran has an acquired psychiatric disability, to include PTSD, that is at least as likely as not related to an in-service injury, event, or disease. The medical evidence shows that the Veteran has not been diagnosed with PTSD in accordance with 38 C.F.R. § 4.125(a). The Veteran has not provided or identified any obtainable medical evidence of in-service psychiatric problems or a stressor event. To the extent that lay evidence suggests that the Veteran had in-service symptoms that continued thereafter of psychiatric disability, the Board finds that the evidence is not competent since neither the Veteran nor M.B. possess the requisite medical training or knowledge to diagnose a mental disorder in accordance with 38 C.F.R. § 4.125(a), and a diagnosis is not susceptible to lay observation. See Jandreau, supra. Also, the Board finds that the assertions are not credible in view of the normal separation examination findings, and the Veteran’s denial of symptoms at that time. The Board assigns greater probative value to the normal STRs and the Veteran’s denial of problems at that time. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). As to the PTSD claim, the Board finds that the evidence does not include medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); or a link, established by medical evidence, between current symptoms and an in-service stressor; or credible supporting evidence that an in-service stressor occurred. 38 C.F.R. § 3.304(f). It is noted that, although the Veteran filled out VA Form21-0781, she did not identify any specific traumatic event and the available medical evidence reflects no indication of any in-service traumatic event. As such, any attempt to verify a traumatic incident would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Also, the Veteran has not presented a favorable medical opinion to weigh in this matter. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 5. Entitlement to service connection for a left knee condition. 6. Entitlement to service connection for an ear condition. 7. Entitlement to service connection for hypertension. Issues 5-7. The Veteran suggests that she has a left knee condition, ear condition (infections), and hypertension that began in or is related to service. She vaguely described her left knee problem as a muscle disorder. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The question is also whether the Veteran had arthritis or hypertension in service or within the initial post separation year. The Board concludes that the preponderance of the evidence is against finding that a left knee condition, ear condition (infections), and/or hypertension began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.307, 3.309. STRs reflect no complaints or findings for left knee condition, ear condition (infections), and hypertension. August 1992 service separation examination reflects normal evaluation of the lower extremities, ears, and vascular system. Also, on the medical history part of that exam, and the Veteran denied swollen/painful joints, ear trouble, high blood pressure, bone/joint abnormality, and trick/locked knee. Reserves exam dated July 1994, two years after service separation, similarly reflects normal clinical evaluation. VA treatment records reflects as follows: In February 2001, the Veteran reported a past history of hypertension and 2002 notes reflect a diagnosis for hypertension with follow-up care. In March 2006, the Veteran presented with ear symptoms assessed as “ear discomfort likely otitis externa.” In December 2011, the assessment was left knee sprain with joint effusion and limited flexion. By history, the Veteran attended a party and was dancing, and subsequently had swelling. An October 2012 MRI showed degenerative joint disease (DJD) of the left knee, joint effusion, and partially separated Baker’s cyst. A January 2012 note reflects that the Veteran twisted her left knee dancing. The evidence of record shows that left knee disorder, DJD, was not shown in service or within the initial post separation year. The disability is first documented many years after service. Further, it is not medically linked to service. The Veteran has not reported any injury in service or specific theory of entitlement. The evidence shows that a chronic ear disorder (infections) was not incurred in service. The evidence shows no indication that the Veteran has chronic ear infections that had their onset in service or are otherwise related to service. The evidence of record shows that, while the Veteran appears to have hypertension, this disability was not first manifested in service or within the initial post separation year. The disability is first documented many years after service. Further, it is not medically linked to service. To the extent that the Veteran suggests in-service onset, the Board finds that she is not credible in view of the normal separation examination findings, and the Veteran’s denial of symptoms at that time. The Board assigns greater probative value to the normal STRs and the Veteran’s denial of problems at that time. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). On balance, the weight of the evidence is against the claims. (Continued on the next page)   Accordingly, the claims are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel