Citation Nr: 18149208 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 14-42 790 DATE: November 9, 2018 ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. Entitlement to service connection for traumatic brain injury (TBI) is denied. REMANDED Entitlement to an increased rating for hearing loss is remanded. FINDINGS OF FACT 1. The most probative competent evidence of record reflects that the Veteran does not have a current diagnosis of PTSD. 2. The most probative competent evidence of record reflects that the Veteran does not have a current diagnosis of TBI. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f) and (f)(3). 2. The criteria for entitlement to service connection for TBI have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from January 9, 1964 until October 20, 1966. He is a Veteran of the Vietnam Era. These matters are before the Board of Veterans’ Appeals (Board) on appeal of February 2012 and September 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran initially requested a hearing by video conference. However, in October 2016, the Veteran indicated that he wished to withdraw his hearing request. Under 38 C.F.R. § 20.704(e), a request for a hearing may be withdrawn by an Veteran at any time before the hearing. Therefore, the Board finds that the hearing request has been withdrawn, and will proceed with appellate review. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Entitlement to service connection for PTSD is denied. The Veteran seeks entitlement to service connection for PTSD. However, the record does not show that the Veteran has been diagnosed with PTSD by a competent medical professional. At a June 2014 Compensation & Pension examination, the Veteran reported symptoms that included recurrent memories and dreams of in-service events. That examiner reviewed the record, interviewed the Veteran, examined the Veteran, and determined that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD. Upon examination, the Veteran’s thought processes were “logical and rational” with “no evidence of psychotic symptoms”. The examiner found that while the Veteran has “some mild PTSD related symptoms”, this is also likely attributable to “having more time on his hands following retirement”. The examiner found that the Veteran does not meet the full criteria for PTSD because “there is very little evidence of any significant impairment in social or occupational functioning”. The Veteran reported during the exam that he had been married to his only spouse for forty-seven years, had “lots” of friends, and had been self-employed as a builder who had employees for twenty years after leaving the military. It was further noted that in addition to not having diagnosable PTSD symptoms, the Veteran in fact had “no mental disorder that conforms with DSM-5 criteria”. The Veteran also asserted that he had no mental health treatment history which was reflected by a review of the record, though the record also reflected that his primary care provider had recently prescribed a medication for mood and one for sleep. In November 2015, the Veteran had another Compensation & Pension exam in which it was determined that his symptoms “do not meet the diagnostic criteria for PTSD” and that he has “no mental disorder diagnosis”. That examiner noted that the Veteran’s most predominant symptom appeared to be “mild depressive [symptoms] likely secondary to changes in mood and cognition, possibly due to aging and being retired with too much time on his hands to reflect”. These mild symptoms were found to “not rise to the level of a fully diagnosable condition”. It was also noted that the Veteran had coped adequately post-Vietnam in terms of employment, daily living, family relationships, and yet had found himself more irritable and stressed in recent years. The examiner noted that the Veteran’s recent “thinking and dreaming more about events in Vietnam” is “not the same as delayed onset PTSD”. The Board acknowledges the Veteran’s reports of in-service stressors to the June 2014 and November 2015 Compensation & Pension examiners, including his accounts of carrying body bags and shooting incidents that occurred during his service in Vietnam. The Board does not doubt that the Veteran experienced these in-service stressors. However, the existence of in-service stressors is insufficient to show that there is a current psychiatric disorder when the evidence reflects that none has been diagnosed. As the November 2015 examiner opined, the Veteran’s mild depressive state, though not a diagnosable condition, “leads him to ruminate about Vietnam and family matters, but it is not Vietnam that has caused his current symptoms and concerns”. The Veteran has had several other screenings in which he was also negative for PTSD. See April 2015; December 2015 PTSD Screening Test Results. In addition, at the Veteran’s October 1966 separation exam, his psychiatric state was “normal”. There is no evidence elsewhere in the record that the Veteran has been diagnosed with PTSD. The Board acknowledges the Veteran’s assertions that he has PTSD. Although lay persons are competent to provide opinions on some medical issues, the diagnosis of a specific psychiatric condition such as PTSD falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Establishing PTSD as a disability for VA purposes requires diagnostic testing and a diagnosis conforming to the diagnostic criteria set forth in the DSM-5. 38 C.F.R. §§ 4.125, 4.130. The Veteran has not been shown to possess the medical expertise or knowledge required to diagnose a disability such as PTSD. Therefore, because the Veteran is a lay witness, his statements do not constitute competent evidence of a diagnosis of PTSD conforming to the DSM-5. The Board instead affords probative value to the medical evidence of record, which shows that the Veteran has not been provided a formal diagnosis of PTSD. Accordingly, the competent medical evidence of record does not show that the Veteran had a diagnosis of PTSD during or in proximity to the relevant appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). As noted above, in the absence of proof of a current disability, there can be no valid claim for entitlement to service connection. Brammer, 3 Vet. App. at 225. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for PTSD. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for TBI is denied. The Veteran claims that he sustained a TBI while driving a military truck in Vietnam when an ammo dump about 100 yards away from him exploded after it was attacked. The Veteran asserts that this caused him to lose consciousness and hearing for a few minutes, that he began having periodic headaches about ten years later, and that they have continued ever since. In relation to this claim, the Veteran asserted at his October 1966 separation examination that his health was “good” and denied having “frequent or severe headache[s]”. The Veteran underwent neuropsychological testing in August 2014 for his reported memory problems resulting from his claimed TBI. The examiner noted that the Veteran “failed multiple measures of effort and validity”. However, while the Veteran’s “performance was clearly suboptimal, his verbal and visual memory scores were still well within normal limits”. The examiner could not determine whether the Veteran had sustained a concussion as it was “unclear” from the Veteran’s description and “there are no medical records available to corroborate symptoms of concussion”. The examiner found that “[i]f he did sustain a concussion, it was extremely mild.” Regardless, the examiner opined that his “reported onset of an isolated headache 10 years later in 1975 is clearly not related to [the] concussion in 1965”. It was also noted that the Veteran’s “reported onset of subjective memory loss 40 years later (2006-2008) is clearly not related to this event”. Further, the Veteran was afforded a Compensation & Pension Examination in September 2014. After a review of the record and an examination of the Veteran, to include his lay testimony about the in-service explosion and the symptoms he experienced afterwards, the examiner found no basis upon which to diagnose the Veteran as having residuals of a TBI. Upon examination, the Veteran indicated that he did not have any impairment to his attention, concentration, or executive functions. His judgment was deemed normal, his social interaction was noted as routinely appropriate, he had normal speech and articulation, and he displayed no deficits in orientation or motor activity. Further, he did not display any neurobehavioral effects or any communication issues. Similarly, at a November 2015 Compensation & Pension Exam, it was noted that the Veteran has “no diagnosis of TBI”. The evidence on record indicates that the Veteran has not endorsed any alteration in mental state at the time of the injury, any neurological deficits, nor any intracranial lesions. The Veteran’s service treatment records, including his self-reporting at his separation examination, do not contain any complaints or findings related to a TBI. The medical opinions on record indicate that if the Veteran did have an in-service concussion, it was mild and completely resolved without any residuals. Further, the evidence on record does not indicate that the Veteran has ever been diagnosed with a TBI. The Board has considered the Veteran’s contention that he incurred a TBI during an explosion in service. Service incurrence is presumed pursuant to 38 U.S.C. § 1154 (b). Section 1154 (b), however, only provides a means by which combat veterans may establish the second element of service connection, an in-service event or injury. It does not eliminate the need for evidence of a current disability or a medical nexus. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Accordingly, even when the combat presumption applies, a “veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Boyer v. West, 11 Vet. App. 477, 478-79 (1998) (specifically addressing section 1154 (b) and the need for nexus evidence where in-service exposure to acoustic trauma was otherwise established by the record). In this case, the most probative evidence of record, the August 2014 Neuropsychological Examination and September 2014 VA Compensation & Pension Examination, which were conducted for the express purpose of determining whether the Veteran had a TBI as a result of his in-service injury, each indicate that the Veteran does not currently have a TBI as a result of the in-service injury. There is no other probative evidence of record indicating that the Veteran currently has a TBI or the residuals of one. The Board has considered the Veteran’s contentions to the effect that he has a TBI as a result of injuries sustained in the explosion, but finds that the determination of whether the Veteran suffers from residuals of a TBI is a medical question not subject to lay expertise. See Jandreau, 492 F.3d at 1372. The condition involves a pathological process that is not readily observable to a layperson. The Board finds that in light of the non-observable nature of the pathology, the issue of whether the Veteran suffers from the residuals of a TBI is a medical question requiring medical training, expertise, and experience. The Board finds that the medical opinion provided in the September 2014 examination outweighs the Veteran’s lay opinion. The Board also notes that the Veteran is in receipt of separate ratings for his hearing loss and has been separately denied service connection for his headaches. Thus, VA has considered alternate diagnoses for the symptoms which are a part of the underlying claim. See 38 C.F.R. § 4.124a, Diagnostic Code 8045; Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board finds the preponderance of the evidence does not support a diagnosis of a current disability with respect to the Veteran’s claim for service connection for residuals of a TBI. Therefore, the Board finds that service connection is not warranted for this claim. REASONS FOR REMAND Entitlement to an increased rating for hearing loss is remanded. Regrettably, remand is necessary for proper development of this issue. Veterans are entitled to initial review by the Agency of Original Jurisdiction (AOJ) of evidence added to the file by VA, and waiver of such review may not be presumed. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1304. Here, additional evidence has been added to the file by VA since the Statement of the Case (SOC) was issued in November 2014. Notably, additional VA treatment records were added to the record in November and December 2016 and March 2018, which included treatment for the Veteran’s hearing loss. Upon review, however, it is clear that the matter has not been readjudicated by the AOJ in an additional SSOC since that time. Therefore, the appeal must be remanded so that an SSOC may be issued that considers all evidence of record. 38 C.F.R. § 20.1304(c). In addition, with respect to the issue of an increased rating for his hearing loss, the Veteran was last provided with a VA examination relevant to this disability in January 2012, over six years ago. However, the Veteran reported at his May 2017 otolaryngology exam that his hearing “seems to be worse” and the examiner noted that hearing aids would “likely be beneficial”. As this indicates a worsening of the Veteran’s hearing loss since his last VA examination, the RO must schedule the Veteran for an updated hearing examination to determine the current severity of his service-connected hearing loss. See 38 C.F.R. § 3.159 (c)(4)(i); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination with a competent medical examiner to determine the current severity of his service-connected hearing loss. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all clinical findings reported in detail. 2. Following the completion of step one, the claim on appeal must be readjudicated, taking into consideration all relevant evidence associated with the evidence of record since the November 2014 SOC. If the benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Law Clerk