Citation Nr: 18153185 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-53 668 DATE: November 27, 2018 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for an unspecified depressive disorder with anxious distress (claimed as posttraumatic stress disorder due to military sexual trauma) is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of tinnitus. 2. The preponderance of the evidence is against finding that the Veteran has an unspecified depressive disorder with anxious distress due to a disease or injury in service, to include a specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for an unspecified depressive disorder with anxious distress have not been met. 38 U.S.C. §§ 1101, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f)(5) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2001 to May 2002. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Generally, service connection for posttraumatic stress disorder (PTSD) requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for tinnitus. The Veteran filed an application for service connection for tinnitus in March 2014. She was scheduled for a VA examination in April 2014. However, at this examination the Veteran did not report recurrent tinnitus. As such, the examiner opined that since the Veteran denied tinnitus, that it was less likely than not that tinnitus was related to military noise exposure. The first element of service connection is a current disability. The record does not show that the Veteran has a current disability of tinnitus, or that she has ever complained of such outside of her application for service connection. The Veteran’s service treatment records show normal hearing exams in November 2000, August 2001, and January 2002, with no complaints of tinnitus. Moreover, the Veteran’s bilateral hearing was found to be normal at her April 2014 VA examination. Accordingly, entitlement to service connection for tinnitus on a direct basis is denied. Tinnitus is an organic disease of the nervous system, and is therefore considered a chronic disease for VA purposes and service connection based on continuity of symptomatology is applicable in this case. Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). The record does not persuasively support a finding of continuity of symptomatology as the Veteran reported no hearing loss at separation from service, and her treatment records since separation make no mention of tinnitus. As the record is silent for any complaints of tinnitus both during and following separation from service, service connection for tinnitus based on the presumption in favor of continuity of symptomatology is not warranted. Thus, entitlement to service connection for tinnitus is denied. 2. Entitlement to service connection for an unspecified depressive disorder with anxious distress (claimed as PTSD due to military sexual trauma). In March 2014 the Veteran also filed for service connection for PTSD. The Veteran contends that her PTSD is the result of military sexual trauma, specifically her sergeant propositioning her for sex so that she could be promoted. However, she also reported that “it wasn’t rape” but she felt like she was being pushed into doing it. The Veteran explained that she was propositioned by her sergeant six to seven times and eventually became pregnant by her sergeant who was married. The Veteran further contends that she was forced out of the military due to her pregnancy. Although she also reported that she asked to be discharged for fear of losing her baby following a week of prescribed bedrest as the result of bleeding during her pregnancy. On her Form 9 filed in November 2016, the Veteran claimed that her PTSD was the result of being sexually traumatized by a superior in the military and contended that the sexual act was forced and unwelcomed. The Veteran was given a VA examination in April 2014, wherein the examiner opined that the Veteran did not meet the DSM-5 criteria for a diagnosis of PTSD, but that she did have a diagnosis of an unspecified depressive disorder with anxious distress. The examiner went on to explain that the Veteran’s symptoms “appear to be most related to the potential of her fiancé finding out the paternity of her first child. Her symptoms are not in response to trauma she experienced in military. There was no trauma in military. Her symptoms are in response to current relationship stressors.” The examiner went on to note that “the Veteran did not report psychiatric symptoms during the military and has never sought mental health treatment. Thus, it is this writer’s opinion that the Veteran’s currently assigned diagnosis of unspecified depressive disorder with anxious distress is less likely than not incurred in or caused by claimed in-service event, or illness during service.” The Board finds this opinion to be well-reasoned and entitled to significant weight. While the Veteran has a current disability, and resolving all reasonable doubt in her favor, the Board finds that there was an in-service event, there is no medical nexus. As opined by the VA examiner, the Veteran’s current disability appears to relate to current relationship stressors, rather than the sexual relationship that occurred with her sergeant during service. The record does not contain any records of mental health treatment, statements from family members or fellow service members, or evidence of behavioral changes following the claimed sexual trauma. The Veteran was notified by letters in October 2013 and December 2013 of the evidence she would need to provide in order to establish service connection for PTSD, but never completed any additional VA forms regarding her alleged stressors and did not provide any additional evidence in support of her claim for military sexual trauma. The Board finds that the preponderance of the evidence is against the finding of a nexus between the Veteran’s current psychiatric diagnosis and her in-service event. Accordingly, entitlement to service connection for an unspecified depressive disorder with anxious distress (claimed as PTSD due to military sexual trauma) is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel