Citation Nr: 18149627 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-36 654 DATE: November 14, 2018 ORDER 1. Entitlement to service connection for arthritis is denied. 2. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. 3. Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED 4. Entitlement to service connection for a right foot disability is remanded. 5. Entitlement to service connection for a left foot disability is remanded. FINDINGS OF FACT 1. Arthritis was first manifested many years after, and the preponderance of the evidence is against a finding that such disability is etiologically related to, the Veteran’s service. 2. A chronic acquired psychiatric disability was first manifested many years after service, and the preponderance of the evidence is against a finding that such disability is etiologically related to the Veteran’s service; he is not shown to have PTSD. 3. The Veteran has Level I hearing in each ear. CONCLUSIONS OF LAW 1. Service connection for arthritis is not warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Service connection for a psychiatric disability, to include PTSD, is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 3. A compensable rating for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86 Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1974 to November 1977, and had additional service in the Reserves. These matters are before the Board of Veterans' Appeals (the Board) on appeal from January 2013 and December 2014 rating decisions. The Veteran's service treatment records (STRs) from his period of active duty are silent for complaints or findings of a psychiatric disability and for arthritis. Service personnel records show that the Veteran's principal duties in service were radio telephone operator and field wireman. Service department records from the Veteran's Reserve service include a report of a November 1981 examination that found that his musculoskeletal system and psychiatric evaluation were normal. VA outpatient treatment records show that in July 2010 it was noted that the Veteran felt depressed and anxious. A psychiatric social work note the same day indicates that he was seen two hours after using cocaine. In September 2010, a problem list included psoriatic arthritis and osteoarthritis, status post back surgery in July 2009. In September 2010, the Veteran was admitted to a private hospital for alcohol dependence. It was noted that he had been on Prozac several years earlier. The diagnoses included depressive disorder. Audiometry on March 2011 VA examination found that right ear puretone thresholds in decibels were 40, 45, 45 and 40 at 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. Left ear puretone thresholds at corresponding frequencies were 40, 45, 40 and 60 decibels, respectively; average puretone thresholds were 46 in each ear. Speech recognition ability was 94 percent in each ear. It was noted that the Veteran had a mild to moderately severe bilateral sensorineural hearing loss (SNHL). It was noted that without hearing aids, he would have a difficulty hearing and understanding speech in most situations, especially with background noise. Vet Center records show that in August 2011 the Veteran was referred from a VA medical center for treatment of anxiety attacks, bad dreams and PTSD. He stated that two years earlier he lost a close friend who was like a brother to him. He described an incident in May when he shot another person, but was not arrested. He related that he had been emotionally abused by his father. He denied having been in combat. No traumatic events in service were reported. He stated that service was difficult for him because he was sad about being away from home. The assessment was PTSD (non-service related). VA outpatient treatment records show that in March 2013, it was noted that the Veteran's hearing had varied greatly since 2011. At that time, he had a mild to moderate loss, but his hearing was normal through 6,000 Hertz. In September 2014, he stated that he was being treated for depression which had been diagnosed in 2000. He also said that he became depressed four years prior after he shot another man who was harassing him. In January 2016, he reported decreased hearing for several months. A PTSD screen was positive. Later in January 2016, the Veteran presented with concerns of depressive symptoms. It was noted that he did not meet the criteria for PTSD. In February 2016, X-rays of the left shoulder showed degenerative changes. In March 2016, it was stated that when his hearing was last tested in May 2014, he had normal hearing through 4,000 Hertz, bilaterally. Audiometry on February 2017 VA examination found that right ear puretone thresholds in decibels were 20, 20, 25 and 25 at 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. Left ear puretone thresholds at corresponding frequencies were 20, 25, 25 and 25 decibels, respectively; average puretone thresholds were 23 in the right ear and 24 in the left. Speech recognition ability was 100 percent in each ear. It was noted that the Veteran had a mild to moderately severe bilateral SNHL. Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). 1. Entitlement to service connection for arthritis Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period postservice (one year for arthritis). 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection for diseases listed in 38 C.F.R. § 3.309(a) may be established by showing continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's STRs are silent for complaints or findings concerning arthritis. In reports of medical history in November 1981, May 1983, December 1985 and January 1988, during his service with the Reserves, he denied arthritis and a bone or joint deformity. The initial indication of arthritis following service is in a September 2010 problem list when osteoarthritis was noted. Left shoulder X-rays in 2016 showed degenerative changes. During the Veteran's hearing at the RO in January 2017 he stated he had arthritis in various joints. As there is no evidence that the Veteran’s arthritis was manifested in service or for many years thereafter, service connection for such disability on the basis that it became manifest in service, or on a presumptive basis (as a chronic disease under 38 U.S.C. §§ 1112, 1137) is not warranted. As arthritis was not clinically noted for many years after service, service connection for such disability based on continuity of symptomatology (under 38 C.F.R. § 3.303(b)) is also not warranted. [The Board observes that the diagnosis of arthritis is not capable of being established by lay observation; it requires diagnostic studies (X-rays, MRI).] The Veteran has not provided any competent evidence linking his current arthritis to his service. He is a layperson, and has not presented any medical opinion or treatise evidence supporting his claim that arthritis is related to service. His own opinion in the matter has no probative value. Whether arthritis, first noted many years after service, may be related to an event in remote service is a medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not submitted any medical evidence showing that arthritis was manifested in service or within one year thereafter (or that it may be etiologically related to his service). Accordingly, the preponderance of the evidence is against this claim. 2. Service connection for a psychiatric disability, to include PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-V); a link, established by medical evidence, between current symptoms and a stressor in service; and credible supporting evidence that the claimed stressor in service occurred. 38 C.F.R. § 3.304 (f). In December 2010, the Veteran related that he was hypervigilant and had a heightened startle response from being around artillery. At an RO hearing he testified that his stressor was that when he went to basic training at Ft. Jackson, he learned that L.D. (his good friend) who was also stationed at Ft. Jackson, had died in a motorcycle accident. The threshold question that must be addressed in this matter is whether the Veteran has/during the pendency of the instant claim had a diagnosis of PTSD. The Veteran's STRs are silent for complaints or findings concerning any psychiatric disability. Vet Center records show that he was seen in August 2011 and was found to have PTSD, but it was not related to service; he had not reported a stressor event that occurred in service. In January 2016, he was seen at a VA outpatient treatment clinic and it was noted that he did not meet the criteria for PTSD. By letter dated in October 2014, VA asked the Veteran to provide more specific details concerning any stressor events in service (he was advised that merely learning of the death of L.D. did not constitute a valid stressor). He did not respond. Accordingly, the record does not provide a basis for a finding of a stressor event in service corroborated by credible supporting evidence. The diagnosis of PTSD is a complex medical question; it requires medical expertise. Jandreau v. Nicholson; 492 F 3d 1372, 1377 (Fed. Cir. 2007). While the Veteran is competent to observe he has had psychiatric symptoms, he is not competent to establish by his own opinion that he has a diagnosis of PTSD, or that his depressive disorder is related to service. He has not submitted any medical evidence supporting that he has a diagnosis of PTSD (in addition to not submitting any evidence supporting that an alleged stressor event in service occurred). Service connection is limited to those cases where disease or injury in service has resulted in a current (shown during the pendency of the claim; see McClain v. Nicholson; 21 Vet. App. 319 (2007)) claimed chronic disability. In the absence of proof of the disability for which service connection is sought, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The threshold legal (see 38 C.F.R. § 3.304(f)) and factual requirements for substantiating a claim of service connection for PTSD are not met. Likewise, the record does not contain any medical evidence that the Veteran's depressive disorder may be etiologically related to his service. In September 2014, it was noted that he was being treated for depression that was diagnosed in 2000. While he has stated that he spoke with a chaplain during service, there is no evidence in the record that establishes that any current psychiatric disability had its onset in service (to include as related to any event or matter he discussed with a chaplain). Notably, in September 2014, he stated that he became depressed after he shot someone about four years earlier (decades after service). The preponderance of the evidence is against this claim, and the appeal in the matter must be denied. Increased rating 3. Rating for bilateral hearing loss. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant, 38 C.F.R. § 4.3. Functional impairment is to be assessed on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When the appeal is from the initial rating assigned with an award of service connection, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Applying 38 C.F.R. § 4.85 Table VI to the findings on the March 2011 VA examination establishes that the Veteran had Level I hearing in each ear. Under Table VII and Code 6100, such findings warrant a 0 percent rating. Similarly, audiometry on the February 2017 VA examination establishes that the Veteran still had Level I hearing in each ear. Under Table VII, such findings warrant the 0 percent rating that is assigned. The Veteran's VA outpatient treatment records show that audiograms in 2011 and May 2014 were normal through at least 4,000 Hertz. The Board has no reason to question that the Veteran’s hearing loss results in functional impairment; however, such impairment has not risen to a level warranting a compensable rating under schedular criteria (and impairment not encompassed by schedular criteria has not been alleged). The preponderance of the evidence is against this claim; accordingly, the appeal in the matter must be denied. REASONS FOR REMAND 4. Service connection for a right foot disability is remanded. 5. Service connection for a left foot disability is remanded. A November 1981 report of medical history shows that the Veteran stated he had foot trouble. He denied arthritis or a bone/joint deformity. The examining physician note that in September 1981 the Veteran had bilateral foot surgery for removal of callus formation. On March 2011 VA foot examination, the Veteran stated that while he was on active duty, he was in boots all the time and developed calluses. He reported that he had to have them removed. He denied a history of trauma to the feet. It appears that the examiner opined that the Veteran had a bilateral foot disability that was as likely as not related to service. However, no diagnosis was provided, and the rationale merely stated that the opinion was based on a review of the record and X-rays on the examination (while the examiner did not acknowledge that the Veteran’s STRs do not note foot complaints, the proximity of the Veteran’s foot surgery to service in time might have been considered suggestive of onset in service). The matter is REMANDED for the following: 1. Ask the Veteran to identify the providers of all evaluations and treatment he has received for a bilateral foot disability since his discharge from service, and to submit authorizations for VA to secure records of any such private evaluations and treatment. Secure for the record all outstanding records of the evaluations and treatment from the providers identified. Then arrange for a foot examination of the Veteran to ascertain the nature and etiology of his right or left foot disability. The examiner should review the record (including any additional documents received pursuant to the request above), and upon examination of the Veteran, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current right or left foot disability is related to service. The examiner must include rationale with all opinions. The rationale should include expression of agreement or disagreement with the March 2011 examiner’s opinion GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Siegel, Counsel