Citation Nr: 18146736 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 14-06 405 DATE: November 1, 2018 ORDER Entitlement to service connection for an eye disability, including blurry vision, is denied. Entitlement to service connection for a seizure disorder is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for chronic ear infections, to include peripheral vestibular disorder, is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. The record reflects the Veteran’s current vision problems are due to refractive error of the eye. 2. The preponderance of the competent medical and other evidence of record is against the Veteran having a current seizure disorder because of his active service. 3. The competent and credible evidence of record reflects it is at least as likely as not the Veteran developed his current PTSD because of active service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for an eye disability, including blurry vision, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for a grant of service connection for a seizure disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for a grant of service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1969 to August 1969, and was discharged under honorable conditions. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2014. A transcript of this hearing is of record. In August 2015, the Board, in pertinent part, remanded the current appellate claims for further development to include competent medical examinations to address the nature and etiology of the claimed disabilities. Such examinations were accomplished in December 2015, and the case has been returned to the Board for additional appellate consideration. However, for the reasons detailed below, the Board finds that further development is still required regarding the hearing loss, ear infection, TBI, and headaches claims. Service Connection 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s 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 at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The Veteran has essentially contended, to include at his June 2014 hearing, that all of the claimed disabilities are due to assaults he experienced while held in the brig during his active service, to include blows to the head with period(s) of unconsciousness. The Board notes that the Veteran’s service treatment records contain no evidence of the type of assault he contends occurred during this period., to include his August 1969 discharge examination. Nevertheless, the Board previously noted in its August 2015 decision that the record confirms the Veteran was incarcerated during his active service for drug offenses, and discharged as a result thereof. Moreover, he is competent, as a lay person, to describe such assaults. Further, he has submitted lay statements from family members who attest to his reporting these assaults at the time they occurred. In addition, while the Veteran was incarcerated for drug offenses, he did not receive a dishonorable discharge and being assaulted in the manner he alleges would not appear to be due to his own willful misconduct. In short, the Board found that the Veteran’s account of in-service assaults while held in the brig during service was competent and credible. Despite the foregoing, the resolution of this appeal depends upon whether the Veteran currently has the claimed disabilities, and, if so, whether they are etiologically related to such injuries. The Board has determined competent medical evidence is required to resolve these matters, and it does not appear the Veteran has contested this determination. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). 1. Entitlement to service connection for an eye disability, including blurry vision The Board acknowledges the Veteran is competent to describe vision problems, including blurred vision. However, vision loss - a refractive error of the eye - is one of the specific conditions that VA does not grant service connection for, as it is not considered a disability for VA purposes. See 38 C.F.R. §§ 3.303 (c), 4.9. Such a condition is part of a life-long defect, and is normally a static condition which is incapable of improvement or deterioration. See VAOGCPREC 67-90 (1990). In this case, the Veteran’s December 2015 VA eye examination found that his visions problems were due to a refractive error of the eye. No competent medical evidence is otherwise of record which finds that he has an acquired eye disorder other than refractive error. Therefore, the record does not reflect he has an eye disability for which service connection may be established. As such, the preponderance of the evidence is against this claim and it must be denied. 2. Entitlement to service connection for a seizure disorder In this case, the Board notes that the Veteran has reported symptoms such as dizziness which he has attributed to a seizure disorder. However, a review of the medical treatment records does not appear to show a diagnosis of such a disability. Further, a December 2015 VA examination explicitly found he did not have a seizure disorder, and no competent medical evidence is of record which explicitly refutes that finding. Moreover, a separate December 2015 VA examination for his chronic ear infections claim attributed his pertinent symptoms such as dizziness to a peripheral vestibular disorder. As such, it appears these complaints are more appropriately addressed in the ear infections claim. For these reasons, the Board finds the preponderance of the competent medical and other evidence of record is against the Veteran having a current seizure disorder because of his active service. Consequently, the claim must be denied. 3. Entitlement to service connection for PTSD In addition to the general rules of service connection noted above, service connection for PTSD requires medical evidence diagnosing the condition 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). Further, 38 C.F.R. § 4.125 (a) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual of Mental Disorders (DSM) and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. In this case, the Board notes that a December 2015 VA psychiatric examination diagnosed the Veteran with PTSD, and attributed the disability to his account of injuries sustained while incarcerated in the brig. The Board acknowledges that the claim continued to be denied below, in essence, because it was determined there was insufficient evidence the purported stressor occurred. However, as noted above, the Board as already found his account of such injuries to be competent and credible. Further, the law provides that if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, 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 the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(1). The Board also reiterates that the law mandates resolving all reasonable doubt in favor of the Veteran, to include issues of service origin. In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Moreover, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. In view of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds the competent and credible evidence of record reflects it is at least as likely as not the Veteran developed his current PTSD as a result of active service. Therefore, service connection is warranted. The Board notes that in making this determination it was cognizant of the fact the Veteran’s psychiatric problems have also been attributed to conditions other than PTSD. The law does not preclude establishing service connection for a separately diagnosed acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Nevertheless, a review of the pertinent December 2015 VA examination reflects all of the Veteran’s current symptomatology was attributed to the diagnosis of PTSD. Thus, the Board finds a grant of service connection for PTSD represents a full allowance of the benefits sought on appeal with respect to this claim. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. 2. Entitlement to service connection for chronic ear infections, to include peripheral vestibular disorder, is remanded. 3. Entitlement to service connection for TBI is remanded. 4. Entitlement to service connection for headaches is remanded. In this case, the Board notes that the Veteran also underwent VA examinations for his hearing loss, ear infection, TBI, and headaches claim in December 2015 which contained findings against his service connection claim. For example, the December 2015 VA examination for TBI stated there was no sequelae of TBI. The VA examination for his hearing loss reflects he did have a hearing loss disability as defined by 38 C.F.R. § 3.385, and a diagnosis of peripheral vascular disorder for his ear infections claim. There were also findings of headaches attributable to a neck disability on another VA examination. However, all of these examinations included opinions to the effect the current conditions were not related to service. Despite the foregoing, the Board notes that the stated rationale, to include for there being no sequalae of TBI, was based upon there being no evidence of head injury in the service treatment records. As detailed above, the Board has determined the Veteran’s account of such injury is competent and credible. Therefore, the fact the stated rationale was based upon there being no evidence of such injury reflects these examinations are not adequate for resolution of these appellate claims. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Consequently, a remand is required to accord the Veteran a new competent medical examination which does adequately address these claims. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). As an additional matter, the Board notes, as stated in the August 2015 remand, that the Veteran’s March 1969 enlistment examination reflects there was evidence hearing loss pursuant to Hensley v. Brown, 5 Vet. App. 155, 157 (1993), for the right ear; and a hearing loss disability of the left ear pursuant to 38 C.F.R. § 3.385. Specifically, audiological evaluation conducted as part of his March 1969 enlistment examination, revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT -- 10 0 5 30 60 LEFT 15 25 20 35 55 65 Therefore, the examination/opinion on the hearing loss claim should address whether the pre-existing hearing loss was aggravated as a result of active service. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records for the Veteran which cover a period from December 2015 to the present. 2. Request the Veteran to identify all private medical care providers who have treated him for his claimed hearing loss, chronic ear infections, TBI, and headaches from December 2015 to the present. After obtaining any necessary release, request those records not on file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service hearing loss, ear infection, TBI, and headache symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for a competent medical examination(s) by an appropriately qualified clinician(s) to address the nature and etiology of his claimed hearing loss, chronic ear infection, TBI, and recurrent headaches. For any chronic disability found to be present, the pertinent examiner(s) should express an opinion as to whether it is at least as likely as not it was incurred in or otherwise the result of active service. In making this determination, the Veteran’s account of injuries sustained while incarcerated during service, to include to the head, is deemed to be credible. In addition, with regard to the hearing loss, the respective examiner should express an opinion as to whether the pre-existing hearing loss was aggravated by service, to include the purported assault(s) that occurred therein. By aggravation, the Board means a permanent increase in severity that is beyond its natural progression. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel