Citation Nr: 18149074 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-22 835 DATE: November 8, 2018 ORDER The appeal as to the claim of entitlement to service connection for bilateral hearing loss is denied. The appeal as to the claim of entitlement to service connection for a sleep disorder is denied. REMANDED The appeal as to the claim of entitlement to service connection for attention deficit hyperactivity disorder (ADHD) is remanded. The appeal as to the claim of entitlement to service connection depression is remanded. FINDINGS OF FACT 1. No hearing loss disability has been presented at any time during the pendency of the claim. 2. The Veteran does not have a diagnosis of a sleep disorder. CONCLUSIONS OF LAW 1. The criteria for establishment of entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). 2. The criteria for establishment of entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from June 2003 to June 2007. Amongst other commendations, the Veteran is the recipient of the Bronze Star Medal. His service was under honorable conditions. These matters are on appeal from an April 2014 rating decision. In his May 2016 substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge. The Veteran was notified of his hearing scheduled for September 2018, however, he failed to appear or request to reschedule the hearing. As such, the Board may proceed to adjudicate this claim. See 38 C.F.R. § 20.704(e) (2018). Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied, "when a claimant has a disability at the time a claim for VA disability compensate on is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for bilateral hearing loss disability. The Veteran contends that his current bilateral hearing loss disability began during active service as a result of his duties in field artillery. In this regard, the Agency of Original Jurisdiction (AOJ) conceded that the Veteran’s Military Occupational Specialty (MOS) is highly probable for inservice noise exposure. Thus, noise exposure is conceded. For the purposes of applying the laws administered by VA, hearing impairment is considered a disability when the auditory threshold level in any of the frequencies 500, 1000, 2000, 3000, 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. Service treatment records are negative for complaints, treatment, or a diagnosis of right or left hearing loss. Following service, the Veteran’s original claim for VA compensation for hearing loss disability was received in March 2013. Post-service treatment records include a March 2016 VA examination report. At the time, the Veteran reported that he was exposed to acoustic trauma during service. The audiological examination report notes the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 15 15 LEFT 20 20 20 15 20 The examiner stated that the Veteran’s speech audiometry revealed a speech recognition score of 98 percent, bilaterally. Upon review of the claims file, the examiner noted that the Veteran had normal hearing bilaterally, as the examination did not demonstrate any right or left ear hearing loss that met the criteria for a disability for VA purposes. There is no medical evidence of record showing that the Veteran has ever had sufficient hearing impairment in either ear to qualify as a disability for VA compensation purposes. See 38 C.F.R. § 3.385. The Board recognizes that the Veteran might sincerely believe that he has a bilateral hearing loss disability that is related to his active service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. 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); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran is competent to report his symptoms, he does not possess the medical expertise required to provide a competent opinion concerning the etiology of the disability at issue. In any event, the Veteran's lay opinion is clearly of less probative value than the VA medical opinion against the claim. Accordingly, the Board must conclude that service connection is not warranted for this claimed disability. The Board has duly considered the benefit of the doubt doctrine. However, for the reasons explained above, the Board has determined that the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable to this claim. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to service connection for a sleep disorder. The Veteran contends that a sleep disorder began during active service. Service treatment records are negative for complaints of, treatment for, or diagnoses of a sleep disorder. Post-service records are negative for a diagnosis of a sleep disorder. The Board recognizes that the Veteran might sincerely believe that he has a sleep disorder that is related to his active service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. 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). Although the Veteran is competent to report his symptoms, he does not possess the requisite medical training or expertise necessary to render his statements as competent evidence on matters such as medical diagnosis or medical causation. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. § 1110; see also Brammer, 3 Vet. App. at 225 (1992). As above, the evidence does not show that the Veteran has a sleep disorder, nor has such diagnosis been present at any time during the period of the appeal. Accordingly, the Board finds that the probative evidence is against finding that the Veteran has a current sleep disorder. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for ADHD. See argument Below at Number 2 2. Entitlement to service connection for depression. The Board finds that additional development is necessary prior to adjudication of the claim; specifically, another VA examination and opinion are required for the reasons stated below. The Veteran underwent a VA psychiatric examination in March 2016. Upon examination, the examiner diagnosed anxiety and posttraumatic stress disorder (PTSD). The Board, however, finds the March 2016 VA examination and opinion inadequate to adjudicate the claim. In this regard, the examiner noted a diagnosis of PTSD, but also found that the Veteran did not meet the criteria for PTSD. Moreover, the examiner indicated that the Veteran did not meet the criteria for ADHD, but he did not provide a rationale for such finding and the record demonstrates a current diagnosis of ADHD, as well as ongoing treatment, to include medication. The examiner also failed to provide an opinion as to the etiology of the Veteran’s current diagnoses of obsessive compulsive disorder (OCD), and depressive disorder. Therefore, the Board must remand these issues for another examination and medical opinion concerning this matter. The AOJ must obtain ongoing VA outpatient treatment records dated in April 2018, to the present, and associate them with the record. 38 C.F.R. § 3.159(c)(2). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include ongoing VA outpatient treatment records dated from April 2018, to the present, and any private treatment records identified by the Veteran. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should be clearly documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Schedule the Veteran for a VA examination before an appropriate physician to determine the etiology of any psychiatric disorder present during the period on appeal, to include ADHD, PTSD, OCD, and depression. The examiner must review the record, to include service treatment records, VA and private treatment records, and lay statements. The examiner must also consideration the Veteran's documented medical history, assertions, and reported symptoms. All indicated studies should be completed, and all clinical findings reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that any current psychiatric disorder, to include ADHD, PTSD, OCD, and depression disorders, manifested during, or as a result of, active military service. In addition, to the extent possible, the examiner must distinguish which symptoms are manifestations of the service-connected anxiety disorder. The examiner must also comment on the Veteran’s current diagnoses of ADHD, PTSD, OCD and depressive disorders, diagnosed and treated by the Veteran’s private physician, Dr. M.K., MD, in 2012-2016. For purposes of the opinions, the examiner should assume that the Veteran is a credible historian. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 4. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel