Citation Nr: 18146873 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 16-38 669 DATE: November 1, 2018 ORDER Entitlement to service connection for neck disability is denied. Entitlement to service connection for thoracolumbar disability is denied. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and depression is remanded. FINDINGS OF FACT 1. The competent and probative evidence is against a finding that a current neck disorder had its onset during active service, was caused by active service, or manifested within one year of separation from active service. 2. The competent and probative evidence is against a finding that a current thoracolumbar spine disability had its onset during active service, was caused by active service, or manifested within one year of separation from active service. 3. The Veteran’s current left ear hearing loss did not have its onset during active service, was not caused by active service, and did not manifest within one year of separation from active service. 4. The Veteran’s current right ear hearing loss did not have its onset during active service, was not caused by active service, and did not manifest within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disorder have not been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317 (2018). 2. The criteria for service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317 (2018). 3. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 4. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1973 to November 1976. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. 3.303 (a) (2018). To establish a right to compensation for a present disability, a veteran must show: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Entitlement to service connection for a neck disability The Veteran contends that his current neck disorder was incurred during active service. A review of the Veteran’s service treatment records (STRs) are negative for any neck pain complaints, treatment, or diagnoses. September 1973 entrance and October 1976 separation medical examinations show all evaluations as normal. Post-service treatment records show that in April 2006 underwent cervical spine surgery for cervical fusion. However, there is no medical evidence linking the condition to service. While the Board acknowledges the Board developed a neck condition that required surgery many years after service, and the Veteran’s assertion that it began in service, the preponderance of the evidence does not support the claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a neck condition, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran is not shown to have medical expertise or experience in this area. In sum, his statements as to etiology in this case are not competent and therefore lack probative value. The Board acknowledges that the Veteran has not been afforded a VA examination for his claim for service connection for a neck condition. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2018). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, there is no evidence of an event, injury or disease in service, or of a presumptive disease during the pertinent presumptive period and the Veteran has not referenced any. Therefore, the second McLendon factor has not been met, and no VA examination is necessary. Currently, there is no medical evidence linking a current diagnosis of the claimed disability on appeal to the Veteran's military service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim for service connection for a neck condition must be denied. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for thoracolumbar disability The Veteran contends that he has chronic upper and lower back pain that began in service. A review of the Veteran’s service treatment records (STRs) are negative for any back complaints, treatment, or diagnoses. September 1973 entrance and October 1976 separation medical examinations show all evaluations as normal. While post-service treatment records show that the Veteran has a history of chronic back pain there is no competent medical evidence linking any back condition to his military service. While the Board acknowledges the Veteran has a current back condition consisting of back pain, and the Veteran’s assertion that it began in service, the preponderance of the evidence does not support the claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a neck condition, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran is not shown to have medical expertise or experience in this area. In sum, his statements as to etiology in this case are not competent and therefore lack probative value. The Board acknowledges that the Veteran has not been afforded a VA examination for his claim for service connection for a back condition. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2018). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, there is no evidence of an event, injury or disease in service, or of a presumptive disease during the pertinent presumptive period and the Veteran has not referenced any. Therefore, the second McLendon factor has not been met, and no VA examination is necessary. Currently, there is no medical evidence linking a current diagnosis of the claimed disability on appeal to the Veteran's military service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim for service connection for a back condition must be denied. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for left ear hearing loss A review of the Veteran’s service treatment records (STRs) disclose no complaints, treatment or finding of left ear hearing loss. In fact, the Veteran had hearing in his left ear that was determined to be within normal limits upon entrance into service and no significant threshold shift in his left ear on separation, as was noted by the VA examiner during the March 2013 VA audio examination. Although post-service medical records show the Veteran has a left ear hearing loss, there is no medical evidence linking the condition to service. The Veteran has reported that his left ear hearing loss began in service and has existed since service. While the Board acknowledges the current diagnosis of left ear hearing loss, and the Veteran’s assertion that it began in service, the preponderance of the evidence does not support the claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of left ear hearing loss, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran is not shown to have medical expertise or experience in this area. In sum, his statements as to etiology in this case are not competent and therefore lack probative value. The March 2013 VA examiner determined that the Veteran had hearing within normal limits when he entered service and had hearing within normal limits upon separation from service, with no significant threshold shifts during service. The Board finds the March 2013 VA opinion to be persuasive evidence as it was based on a review of the record, accompanied by a clear rationale, and has not been refuted by any other competent evidence. There is no competent evidence of record linking the Veteran’s left ear hearing loss to his military service. With regard to granting service connection on a direct basis, the Board notes that regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2018). Currently, there is no medical evidence linking a current diagnosis of the claimed disability on appeal to the Veteran's military service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim for service connection for left ear hearing loss must be denied. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for right ear hearing loss A review of the Veteran’s service treatment records (STRs) disclose no complaints, treatment or finding of right ear hearing loss. In fact, the Veteran had hearing in his right ear that was within normal limits upon entrance into service and no significant threshold shift prior to separation, as was noted by the VA examiner during the March 2013 VA audio examination. Although post-service medical records show the Veteran has a right ear hearing loss, there is no medical evidence linking the condition to service. The Veteran has reported that his right ear hearing loss began in service and has existed since service. While the Board acknowledges the current diagnosis of right ear hearing loss, and the Veteran’s assertion that it began in service, the preponderance of the evidence does not support the claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of right ear hearing loss, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran is not shown to have medical expertise or experience in this area. In sum, his statements as to etiology in this case are not competent and therefore lack probative value. The March 2013 VA examiner determined that the Veteran had hearing within normal limits when he entered service and had hearing within normal limits upon separation, with no significant threshold shifts during service. The Board finds the March 2013 VA opinion to be persuasive evidence as it was based on a review of the record, accompanied by a clear rationale, and has not been refuted by any other competent evidence. There is no competent evidence of record linking the Veteran’s right ear hearing loss to his military service. With regard to granting service connection on a direct basis, the Board notes that regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2018). Currently, there is no medical evidence linking a current diagnosis of the claimed disability on appeal to the Veteran's military service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim for service connection for right ear hearing loss must be denied. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and depression is remanded. Although further delay is regrettable, the Board finds that further development is necessary in order to fulfill VA’s duty to assist the claimant with the development of his claim. 38 C.F.R. § 3.159 (2018). Further development for corroboration of the Veteran’s claimed in-service stressor is necessary. The Veteran, in his June 2011 PTSD stressor statement, reported that sometime in June 1976 while on a routine mess hall delivery he witnessed a transport truck carrying a fellow serviceman stopped on the side of the road on the autobahn. As the fellow serviceman got off the truck and onto the side of the road a civilian vehicle, travelling at a high rate of speed, struck him killing him instantly. An October 2010 VAMC PTSD screen was positive. A March 17, 2011 VA treatment note reflects that the Veteran reported disturbing memories and nightmare about an in-service incident in which a Sgt. was struck by a car and killed. The Veteran reported feeling guilty about the death because the Sgt. was given permission by the Veteran to participate in a detail the Veteran was in charge of at the time of the incident. The Veteran was assessed with PTSD and depression, NOS. A February 12, 2013 Defense Personnel Records Information Retrieval System (DPRIS) request for verification of the Veteran’s stressor lists the deceased serviceman as Sgt. Winklie instead of Wrinklie as the Veteran spelled it in his stressor statement. The date of the incident is also listed as June 1, 1976 however, the Veteran did not provide a specific date in June, he just stated it occurred in June 1976. A February 22, 2013 Formal finding of inability to corroborate the claimed stressors reflects that the Joint Services Records Research Center (JSRRC) coordinator determined the information required to verify the stressful event described by the Veteran was insufficient to send to U.S. Army and JSRRC and/or insufficient to allow for meaningful research of Army or National Archives and Records Administration (NARA) records. The efforts listed to obtain the information necessary to verify the stressful events were a personnel file request and review of the claims folder to include the DD 214 and personnel records. The Board notes that an undated DRPIS response reflects that the US Army historical records were researched for an incident pertaining to the death of Sgt. Winklie during 1976 to no avail as well as research with the US Army Combat Readiness/Safety Center for the period March 1 to August 31, 1967 which did not provide any information in the incident. It appears that the year 1967 is a typo as the correct year of 1976 was previously noted. The response included a notation that there may be a criminal investigation filed of this incident and in order to request documentation, the AOJ should write to the Director, US Army Crime Records Center in Quantico, Virginia. A complete address was provided for follow-up. There is no evidence that any further attempt was made to corroborate the in-service incident despite the recommendation and address supplied by DPRIS. Additionally, it is unclear whether the proper time period or spelling of the deceased servicemember’s name was provided for the search. Therefore, on remand, the AOJ should attempt to verify the aforementioned stressor by contacting the Director, US Army Crime Records Center 27130 Telegraph Road, Quantico, Virginia 22134 as recommended by DPRIS. The matter is REMANDED for the following action: 1. Contact the NARA, the Department of the Army, the JSRRC, and/or any other appropriate facility to verify the claimed in-service stressor. 2. If and only if the AOJ determines that a claimed stressor has been corroborated, schedule the Veteran for a VA examination to determine the nature and etiology of any current PTSD and major depressive disorder. The examiner should review the claims file and note that review in the report. Any necessary tests or studies should be conducted. Specifically, the examiner should provide the following information: a) The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has PTSD due to stressors experienced during service. b) The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has major depressive disorder due to stressors experienced during service. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Mitchell, Associate Counsel