Citation Nr: 18147531 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-35 462A DATE: November 6, 2018 ORDER Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for irritable bowel syndrome (IBS) is denied. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as unspecified depressive disorder and unspecified trauma and stressor related disorder, is granted. FINDINGS OF FACT 1. The Veteran’s left shoulder disorder did not manifest in service or within one year thereafter and is not otherwise related to service. 2. The Veteran’s bilateral hearing loss did not manifest in service or within one year thereafter and is not otherwise related to service. 3. The Veteran’s IBS did not manifest in service and is not otherwise related to service. 4. The Veteran has a current acquired psychiatric disorder, diagnosed as unspecified depressive disorder and unspecified trauma and stressor related disorder, that is related to his military service. CONCLUSIONS OF LAW 1. A left shoulder disorder was not incurred in active service, nor is arthritis presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. Bilateral hearing loss was not incurred in active service, nor is sensorineural hearing loss presumed to have been so incurred. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). 3. IBS was not incurred in active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. An acquired psychiatric disorder, diagnosed as unspecified depressive disorder and unspecified trauma and stressor related disorder, was incurred in active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1969 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Law and Analysis Initially, the Board finds that VA’s duty to assist has been met as to obtaining outstanding records. The RO attempted to obtain relevant medical records from the VA Tallahassee outpatient clinic for January 2000 to July 2003, but found that they do not exist. See July 2016 report. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis and sensorineural hearing loss is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis and organic diseases of the nervous system (sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a left shoulder disorder In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a left shoulder disorder. The Veteran’s service treatment records are negative for any complaints, diagnosis or treatment of a left shoulder disorder. In fact, his December 1971 separation examination was normal. There is also no evidence showing that the Veteran had left shoulder arthritis manifest to a compensable degree within one year of his separation from service. In addition to the lack of evidence showing that a left shoulder disorder manifested during active service or within close proximity thereto, the evidence of record does not link any current disorder to the Veteran's military service. As noted above, the record shows that there were no complaints, treatment, or diagnosis of a left shoulder disorder in service. The Veteran has also not identified any disease, injury, illness, or event in service that he believes caused his current disorder. As such, there is no injury, disease, or event to which a current disorder could be related. See 38 C.F.R. § 3.159 (c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). There is also no medical opinion otherwise relating any current left shoulder disorder to the Veteran’s military service. Therefore, the Board finds that a left shoulder disorder has not been shown to be causally or etiologically to an event, disease, or injury in service. Based on the foregoing the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a left shoulder disorder. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a left shoulder disorder is not warranted. 2. Entitlement to service connection for bilateral hearing loss In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. The Veteran’s service treatment records are negative for any complaints, diagnosis or treatment related to hearing loss. In fact, his December 1971 separation examination found that his ears and drums were normal, and audiological testing did not reveal hearing loss. There is also no evidence showing that he had bilateral hearing manifest to a compensable degree within one year of his separation from service. The Board does acknowledge the lay statements that the Veteran had hearing loss in service. See December 2013 statement from his spouse; December 2014 VA examination report. Lay persons are competent to report observable symptoms, such as problems since the Veteran's military service. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he or had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, although laypersons are competent to report observable symptoms, the Board finds that the statements regarding the onset of the disorder are not reliable or credible. The allegations are inconsistent with the contemporaneous record. As discussed above, the Veteran's ears, drums, and hearing were found to be normal at his separation examination. Thus, there was actually affirmative medical evidence showing that he did not have hearing loss at the time of his separation from service (rather than a mere absence of treatment or documentation). Moreover, there have been inconsistent reports regarding the onset of the disorder. For example, VA treatment records dated in April 2004 document the Veteran’s report that his hearing loss had its onset approximately 10 years earlier, which would have been over 20 years after his separation from service. Based on the foregoing, the Board concludes that the Veteran's bilateral hearing loss did not manifest in service or within one year thereafter. Nevertheless, the Board does note that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has asserted that he was exposed to noise exposure in service which caused his bilateral hearing loss. The Veteran is considered competent to relate a history of noise exposure during service. In addition, the post-service medical records show that the Veteran has current bilateral hearing loss by VA standards. See 38 C.F.R. § 3.385. Thus, the remaining question is whether the Veteran's current hearing loss is related to his military service. The Veteran was afforded a VA examination in December 2014 during which he was diagnosed with bilateral sensorineural hearing loss. He reported military noise exposure to jet aircraft without hearing protection and denied having any post-service occupational or recreational noise exposure. The VA examiner noted that, although the Veteran reported having hearing loss in service, his hearing was normal in service with no significant threshold shifts, including at separation. The examiner cited the 2006 Institute of Medicine study finding an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. As there was no objective evidence of onset of hearing loss or changes in his hearing in service, the examiner concluded that it was less likely than not (less than 50 percent probability) that his hearing loss was caused by or a result of in-service noise exposure. There is no medical opinion otherwise relating the Veteran's current bilateral hearing loss to his military service. The Board has also considered the Veteran's own statements that his current hearing loss is related to his military service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of delayed-onset 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). Moreover, even assuming the Veteran's lay assertions regarding etiology were competent, the Board nevertheless finds the VA examiner's opinion to be more probative, as it is based on a review of the entire record and the examiner's medical expertise. The examiner provided a thorough rationale with a discussion of the Veteran's medical history and medical literature. Based on the foregoing, the evidence does not show that the Veteran's bilateral hearing loss manifested in service or to a compensable degree within one year of his separation or that such a disorder is otherwise related thereto. For these reasons, the Board concludes that the weight of the evidence is against a finding of entitlement to service connection for bilateral hearing loss. As such, the benefit-of-the-doubt rule does not apply, and the claims are denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for irritable bowel syndrome (IBS) In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for IBS. The Veteran’s service treatment records are negative for any complaints, diagnosis or treatment of IBS. Therefore, the Board finds that the disorder did not manifest in service. In addition to the lack of evidence showing that IBS manifested during active service or within close proximity thereto, the evidence of record does not link any current disorder to the Veteran’s military service. As noted above, the record shows that there were no complaints, treatment, or diagnosis of IBS in service. The Veteran has also not identified any disease, injury, illness, or event in service that he believes caused his current disorder. As such, there is no injury, disease, or event to which a current disorder could be related. See 38 C.F.R. § 3.159 (c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). There is also no medical opinion otherwise relating any current IBS to the Veteran’s military service. Therefore, the Board finds that IBS has not been shown to be causally or etiologically to an event, disease, or injury in service. Based on the foregoing the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for IBS. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for IBS is not warranted. 4. Entitlement to an acquired psychiatric disorder Service connection for PTSD requires medical evidence diagnosing the condition; 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). A mental disorder diagnosis must conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), or, for claims received by or pending before the AOJ on or after August 4, 2014, the DSM-5 (Fifth Edition). See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). In this case, the Veteran's claim was certified to the Board in March 2017; therefore, the regulations pertaining to the DSM-V are for application. If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, 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 that 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)(2). Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See id. If a claimed stressor is not related to combat or fear of hostile or military activity, then a veteran's lay statements, alone, would not be sufficient to establish the occurrence of the alleged stressor; rather, corroborating evidence would be needed to support the claim for service connection. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). See also Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); Doran v. Brown, 6 Vet. App. 283, 289-290 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for an acquired psychiatric disorder, diagnosed as unspecified depressive disorder and unspecified trauma and stressor related disorder. The Veteran has asserted that he developed a current psychiatric disorder as a result of his military service. He has reported coming under enemy attack while serving in Vietnam. See e.g. December 2014 and January 2017 VA examination reports. The Veteran’s VA treatment records document various diagnoses, including chronic PTSD, bipolar disorder, depression, and psychosis. The RO found that his alleged in-service stressor could not be corroborated without more information. See February 2015 memorandum. However, the Board notes that he did serve in the Republic of Vietnam from February 1970 to December 1970. The December 2014 VA examiner found that the Veteran’s symptoms did not meet the DSM-5 criteria for PTSD; however, she did determine that his current unspecified depressive disorder and unspecified trauma and stressor related disorder were at least as likely as not caused by or the result of his military service. In so doing, she noted his reported stressors in service. The Veteran was afforded an additional VA examination in January 2017. The examiner found that he does not satisfy the DSM-5 criteria for PTSD and that he did not have any mental disorder that conformed to the DSM-5 criteria. The examiner acknowledged his continuing psychiatric treatment and diagnoses of PTSD and a mood disorder NOS, but determined that he had no current diagnosis. The examiner explained that he was unable to determine if the Veteran met the criteria for another mental disorder because he was uncooperative and feigning symptoms. However, he also stated that the fact that the Veteran was not diagnosed with a mental disorder is not tantamount to saying that he does not have a mental disorder. Instead, it reflects that he was unable to differentiate the possible legitimate symptoms from the feigned symptoms because he was uncooperative. Based on the treatment records documenting a current disorder and the December 2015 VA examiner’s diagnosis and positive nexus opinion, the Board finds that there is a reasonable doubt as to whether the Veteran’s current psychiatric disorder is related to his military service in Vietnam. In reaching this decision, the Board emphasizes that the January 2017 VA examiner indicated that his statements did not mean that the Veteran did not have any current disorder, but rather he was unable to assess the Veteran’s symptoms. There is also no medical opinion otherwise showing that the documented diagnoses are not related to his military service. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for an acquired psychiatric disorder, currently diagnosed as unspecified depressive disorder and unspecified trauma and stressor related disorder. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel