Citation Nr: 18145738 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-16 674 DATE: October 30, 2018 ORDER Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a psychiatric disability, to include depression and posttraumatic stress disorder (PTSD), claimed as due to military sexual trauma, is remanded. FINDINGS OF FACT 1. The record contains clear and unmistakable evidence that the Veteran’s pes planus pre-existed entrance to service and that there was no increase in severity of the preexisting pes planus in service beyond the natural progression of the disorder. 2. The Veteran does not have bilateral hearing loss disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C. § 1110, 1111, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In addition, disabilities diagnosed after separation from may also be service connected if all the evidence, including pertinent service records, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, certain chronic diseases, including sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for a disability that is the result of aggravation of a preexisting injury incurred in service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b). Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity in service. Paulson v. Brown, 7 Vet. App. 466 (1995); Crowe v. Brown, 7 Vet. App. 238 (1994). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where a pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent service. 38 C.F.R. § 3.306(b)(1); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Regarding the question of aggravation of a pre-existing condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Cotant v. Principi, 17 Vet. App. 116 (2003). VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C. § 1153. Aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. VA is to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). 1. Entitlement to service connection for bilateral pes planus. The Veteran has appealed a June 2015 rating decision that denied service connection for bilateral pes planus. The Veteran was examined in January 1988 prior to entering active duty and moderate asymptomatic bilateral pes planus was noted. In the accompanying report of medical history, the Veteran indicated that he did not have, nor had he ever had, any foot trouble. With an explicit finding of bilateral pes planus on enlistment, the presumption of soundness does not attach, as the disability was noted at entrance to service. Therefore, the only benefit that can be awarded for bilateral pes planus is service connection on the basis of aggravation of preexisting bilateral pes planus disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). The Veteran’s service medical records do not show complaints or treatments for preexisting pes planus in service. In a February 1989 report of medical history, the Veteran indicated that he did not have, nor had he ever had, any foot trouble. At a July 1992 service separation examination, the examination of the Veteran’s feet was found to be normal. In a July 1994 report of medical history, the Veteran indicated that he did not have, nor had he ever had, any foot trouble. The first medical records showing the Veteran complained of any foot symptomatology are dated in May 2015, many years after service. The Board finds that clear and unmistakable evidence is against a finding of any aggravation of preexisting pes planus during service. While asymptomatic pes planus was noted at entrance to service, no pes planus is noted at any other time during, contemporary to, or immediately after service. The Veteran denied any foot trouble at entrance to service, at separation from service, and in July 1994. Therefore, the Board finds that the evidence does not show that any pes planus increased in severity during service. Therefore, there is clear and unmistakable error that pes planus was not aggravated during service and the claim must be denied. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). 2. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has bilateral hearing loss as a result of active service. Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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; Heuer v. Brown, 7 Vet. App. 379 (1995). The Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss. A February 2016 VA examiner’s report indicates that the Veteran does not have a sufficient degree of bilateral hearing loss to meet VA requirements for any hearing loss to be considered a current disability. 38 C.F.R. § 3.385; Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Audiometric testing in February 2016 provided the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 10 10 LEFT 25 20 10 10 10 Speech audiometry found speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. As the audiometric data demonstrates, the Veteran does not have any decibel losses for any threshold from 500 Hertz to 4000 Hertz, bilaterally, that is 40 or greater. The Veteran does not have at least three of those thresholds with 26 or greater decibels of loss, bilaterally. Further, the Veteran’s Maryland CNC speech discrimination scores were 100 percent, which would not allow a finding of a hearing disability under VA regulations. 38 C.F.R. § 3.385. No other competent medical evidence of record shows hearing loss by audiometric or Maryland CNC testing that meets the criteria to be considered a disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110 (2012); Degmetich v. Brown, 104 F.3d 1328 (1997). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the claim of entitlement to service connection for bilateral hearing loss must be denied. REASONS FOR REMAND Entitlement to service connection for a psychiatric disability is remanded. The Veteran seeks service connection for a psychiatric disability, to include depression and PTSD, claimed as related to military sexual trauma. The Veteran contends that he was blackmailed or coerced into engaging in unwanted sexual acts by a female MP while he was in boot camp. A June 2015 rating decision denied the Veteran’s claim for service connection for PTSD because he did not have a confirmed diagnosis of PTSD and because his service medical records did not contain complaints of, treatment for, or diagnosis of PTSD due to military sexual trauma. The rating decision noted that a March 2015 examination report found that the Veteran did not meet all the criteria for PTSD. However, if a claim for PTSD is based on an in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. 38 C.F.R. § 3.304(f)(5); Patton v. West, 12 Vet. App. 272 (1999). It does not appear that other available evidence was considered prior to denying the Veteran’s claim. For example, the Veteran’s VA psychiatric records show that he has consistently described the sexual trauma. Further, the Veteran’s VA medical records show that he has erectile dysfunction and that he has attributed it to the military sexual trauma. In addition, the Veteran’s lay statements indicate that he has experienced mental health difficulties as a result of the military sexual trauma. The evidentiary record also contains a February 2016 VA mental health evaluation, which found that the Veteran met all the criteria for PTSD. Thus, the matter must be remanded for further development, and to determine whether the Veteran has a current psychiatric disability that may be associated with active service. Specifically, a VA examination is needed to consider the relevant evidence. McClendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, any outstanding psychiatric medical records from June 2015 to the present should be acquired and associated with the claims file. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim. 2. Entitlement to service connection for tinnitus is remanded. At a February 2016 VA examination, the examiner found that an opinion could not be provided on whether tinnitus was related to service without resort to speculation. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. The Board finds that an opinion was not provided. Therefore, further examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain, with any necessary permissions from the Veteran, any outstanding psychiatric medical records from June 2015 to present. 2. Schedule the Veteran for a VA audiology examination of tinnitus. The examiner must review the claims file and should note that review in the report. The examiner should elicit a history of tinnitus from the Veteran and should specifically elicit a history of whether tinnitus was present during service, was present within one year following separation from service, or has had a continuity of symptomatology since service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that tinnitus is related to service or manifested within one year following separation from service. 3. Schedule the Veteran for a VA mental disorders examination with a psychiatrist or a psychologist. The examiner must review the claims file and should note that review in the report. All indicated studies deemed necessary by the examiner should be performed, and all findings should be reported in detail. All opinions must be accompanied by a rationale. The examiner must consider the Veteran’s lay statements regarding the incurrence of the disabilities and continuity of symptomatology since service. The examiner should provide the following information: (a) Provide a full multiaxial diagnosis. Any indicated psychiatric testing necessary to support the diagnosis should be conducted. Specifically, state whether each criterion for a diagnosis of PTSD is met. (b) If a diagnosis of PTSD is appropriate, opine whether it is at least as likely as not (50 percent or greater probability) related to active service or to any stressor event during that service. The examiner should specifically discuss the claimed stressors and whether evidence indicates that those stressors caused PTSD. The examiner should note any indicia of military sexual trauma in the record and whether behavioral changes were shown during service. (c) With regard to each diagnosed psychiatric disability, provide an opinion whether it is at least as likely as not (50 percent or greater probability) that each disability is related to active service. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel