Citation Nr: 18154327 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-59 217 DATE: November 29, 2018 ORDER Entitlement to service connection for nodules on the lungs is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current disability of nodules on the lungs. 2. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current disability of PTSD. 3. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current disability of right ear hearing loss. 4. The preponderance of the evidence is against finding that the Veteran’s left ear hearing loss manifested to a compensable degree within the applicable presumptive period, that there is a continuity of symptomatology, or that left ear hearing loss is otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for nodules on the lungs are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 2. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f) (2017). 3. The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309(a), 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to February 1994. This appeal to the Board of Veterans’ Appeals (Board) arose from a November 2014 rating decision issued by the Department of Veterans Affairs (VA). See November 2015 Notice of Disagreement (NOD); October 2016 Statement of the Case (SOC); November 2016 Substantive Appeal (VA Form 9). While the appeal was pending, additional evidence was received and considered in the December 2017 Supplemental SOC (SSOC). Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). 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). Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Lay evidence can be competent and sufficient to establish a diagnosis 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 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for nodules on the lungs. The Veteran asserts to having nodules or growths on his lungs that he believes are connected to being exposed to oil well fires during the Persian Gulf War and that they cause an “unhealthy effect on his respiratory system.” See November 2015 NOD; April 2016 VA Form 21-4138. The Veteran relates that the modules were unknown to him until a physical conducted at the G.V. “Sonny” Montgomery Medical Center. See November 2016 VA Form 9. Here, the question for the Board is whether nodules on lungs are a current disability. The Board finds that the preponderance of the evidence is against finding modules on lungs as a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See, e.g., Degmetich v. Brown, 104 F.3d 1328 (1997). However, Congress has specifically limited entitlement to service connection for a disease or injury where such instances have resulted in a disability. 38 U.S.C. §§ 1110, 1131. Hence, where the evidence does not support a finding of a current disability of nodules on the lungs upon which to predicate the grant of service connection, there can be no valid claim for this benefit. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the evidence does not show the Veteran has a current disability of nodules on lungs recent to the filing of the claim or at any time during its pendency. Treatment records from G.V. “Sonny” Montgomery VA Medical Center, dated from October 2013 to November 2016, show no mention of a nodule or growth on the Veteran’s lungs. The only imaging evidence of the Veteran’s lungs was performed during his separation in 1993, and it showed no acute pulmonary infiltrations or nodular lesions. See December 1993 Service treatment record. In 2013, the Veteran’s lungs were noted to be clear and an August 2014 pulmonary function test noted only mild obstruction. See October 2013 and August 2014 VA treatment records. The evidence, thus, shows no diagnosis or treatment for nodules or growths on the Veteran’s lungs to support a current disability. The Board also considered the Veteran’s complaint of an unhealthy effect on his respiratory system, but the evidence reflects that the complaint does not amount to a disability that functionally impairs the Veteran. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the symptoms related to a specific body system or joint involved must functionally impair the Veteran to constitute a disability). First, the Veteran did not identify what symptoms result from the unhealthy effect on his respiratory system. Second, as noted above, the Veteran’s lungs have been noted to be clear or with mild obstruction at most. See October 2013 and August 2014 VA treatment records. The evidence otherwise shows no treatment for or complaints of a respiratory problem. The overall evidence is highly probative against the Veteran’s claim of a current disability of nodules on lungs. Because the first element of service connection, i.e., a current disability, has not been met, service connection for nodules on lungs must be denied. 2. Entitlement to service connection for PTSD. The Veteran asserts to having PTSD due to stress from worrying about daily attacks and being placed at base entrances to protect against terrorism while in Saudi Arabia. See July 2014 VA Forms 21-078. The Veteran also asserts PTSD from seeing human bodies hanging in streets and buildings during service, and seeing bodies, limbs, and individuals with massive injuries when he walked through underground tunnels. See July 2014 VA Form 21-078. Here, the question for the Board is whether PTSD is a current disability. The Board finds that the preponderance of evidence is against finding PTSD as a current disability. As discussed above, the existence of a current disability is the cornerstone of a claim for VA disability compensation and there can be no valid claim of service connection if the evidence does not support a finding of a current disability. See 38 U.S.C. §§ 1110, 1131; Degmetich, 104 F.3d 1328; Brammer, 3 Vet. App. at 225. VA treatment records show no diagnosis or treatment for PTSD. Moreover, the Veteran was screened for PTSD during a November 2016 VA treatment visit, and was negative for a diagnosis. See November 2016 VA treatment record. The test result was based on the Veteran’s responses that he had no nightmares or thoughts about his service when he did not want to, that he did not to think about his service or avoid situations that would remind him of it, and that he did not feel numb or detached from others, activities, or surroundings. See id. The Veteran was also afforded an August 2014 VA examination in which the VA examiner opined that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the Diagnostic and Statistical Manual of Mental Disorder (DSM) IV and DSM-V. See August 2014 VA examination. The VA examiner opined that the Veteran had exposure to actual or threatened death or serious injury and has a negative alteration in cognition and mood associated with the traumatic events, but that the evidence did not show the other criteria required for a PTSD diagnosis. See id. As the VA examiner is a medical professional qualified to diagnosis the Veteran’s mental health symptoms, had reviewed the claims file, and examined the Veteran, the Board finds that the opinion is entitled to probative weight. The Board also considered the Veteran’s complaints of having PTSD symptoms, but the evidence reflects that such complaints do not amount to a disability that functionally impairs the Veteran. See Saunders, 886 F.3d 1356. The evidence shows that the Veteran related to his treatment providers that he has good or fair emotional health, social functioning, and occupational functioning. See October 2014 and November 2016 VA treatment records. The Veteran’s statements to his treatment providers are consistent with the August 2014 VA examiner’s opinion that the Veteran has no social or occupational impairment. See August 2014 VA examination. The overall evidence is probative against the Veteran’s claim of a current PTSD disability. Because the first element of service connection, i.e., a current disability, has not been met, service connection for modules on lungs must be denied. 3. Entitlement to service connection for hearing loss. The Veteran asserts to having hearing loss due in service noise exposure, including from rifles, heavy weapons, and being a member of the tank crew. See November 2015 NOD; April 2016 VA Form 21-4138. The Veteran also asserts that there were indicators of hearing loss on his exit physical. See November 2016 Form 9. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. Additionally, certain chronic diseases, including an organic disease of the nervous system such as sensorineural hearing loss, that manifest to a compensable degree within one year after discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regarding the Veteran’s right ear, the Board finds that the preponderance of the evidence is against finding right ear hearing loss as a current disability under the standards established by 38 C.F.R. § 3.385. An August 2014 VA examination for hearing loss showed audiological evaluation results for pure tone thresholds in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 20 30 LEFT 15 15 20 25 35 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 88 percent in the left ear. See August 2014 VA examination. The August 2014 VA examiner’s audiological evaluation of the Veteran’s right ear shows no auditory threshold of 40 decibels or greater, or at least three auditory thresholds of 26 decibels or greater. Id. The audiological evaluation also shows speech recognition scores for the right ear greater than 94 percent. Id. The August 2014 VA examination is entitled to probative weight as the only audiological evaluation during the period on appeal. The Board acknowledges that the Veteran is competent to report hearing-related symptoms he has experienced because this requires only personal knowledge and not medical expertise, but a diagnosis of hearing loss is not necessarily a current disability for which service connection may be granted if the criteria listed at 38 C.F.R. § 3.385 are not met. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993); Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); McKinney v. McDonald, 28 Vet. App. 15, 28 (2016). Based on VA examiner’s findings, the Board finds that the evidence is against finding the Veteran’s right ear hearing loss as a current disability under standards established by 38 C.F.R. § 3.385. For this reason, service connection is not warranted for the Veteran’s right ear. See 38 U.S.C. §§ 1110, 1131; Degmetich, 104 F.3d 1328; Brammer, 3 Vet. App. at 225. As for the Veteran’s left ear hearing loss, the Board finds that it is considered a current disability based on a speech recognition ability of 88 percent. See August 2014 VA examination; 38 C.F.R. § 3.385. The Board also finds that the Veteran experienced in service hazardous noise exposure. See August 1988 Service treatment record. However, the Board finds that the preponderance of the evidence is against finding that left ear hearing loss manifested to a compensable degree within one-year after discharge or that there is otherwise a medical link between the Veteran’s current left ear hearing loss and service. The evidence shows the Veteran’s hearing loss of the left ear did not manifested to a compensable degree during service or within the one-year from his discharge to be entitled to presumptive service connection. For the Veteran’s hearing loss of the left ear to be compensable, audiological examination results must show a pure tone threshold average of 98 Hertz or greater, or speech discrimination of at least 58 percent or less. See 38 C.F.R. § 4.85. Service treatment records show the Veteran had several audiological evaluations during service, but there were no speech audiometry testing and the highest pure tone threshold average for the left ear was 28 Hertz. See February 1974, September 1982, August 1988, January 1990, January 1992, and December 1993 Service treatment records. Moreover, the audiological evaluation results in the August 2014 VA examination do not even support a current compensable hearing loss of the left ear. See August 2014 VA examination. The evidence, therefore, does not support that the Veteran’s hearing loss of the left ear warrants a presumptive service connection. The question remanding for the Board is whether there is a medical link or nexus between the Veteran’s current hearing loss disability of the left ear and service. The Board finds that there is not. As noted, the Veteran is competent to report hearing-related symptoms he has experienced because this requires only personal knowledge and not medical expertise. Jandreau, 492 F.3d 1372. However, while the Veteran’s lay statements about hearing loss is consistent with the Veteran’s symptoms shown by the medical evidence dated over 20 years after his separation, statements to medical treatment providers do not show the same severity of hearing loss. During service, the Veteran sought treatment for ear pain due infection or pharyngitis, but did not complain of hearing loss. The Veteran currently asserts to having hearing loss, but he indicated that he did not know whether he had hearing loss and only explained that he was rated for loss of hearing during a test conducted in Korea. See December 1993 Report of Medical History. In addition, the evidence shows that the Veteran did not try to obtain a hearing aid until September 2014. See September 2014 VA treatment record. Instead, more probative weight is given to the August 2014 VA examiner’s opinion as to whether there is a medical nexus between the Veterans current hearing loss symptoms and his in service noise exposure. The VA examiner opined that it is not as least as likely as not that the Veteran’s left ear hearing loss is caused by or a result of an event in service. See August 2014 VA examination. The VA examiner’s rationale is that the Veteran had excellent hearing in both ears at separation. Id. The VA examiner also opined that there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hertz. Id. The VA examiner’s opinion appears consistent with the Veteran’s audiometry testing during enlistment, which shows only a threshold shift of 10 decibels at the 4000 Hertz frequency and no shift in the other frequencies. See February 1974 and December 1993 Reports of Medical Examination. (Continued on the next page)   Based on the above, the Board finds that the preponderance of the probative evidence is against finding a current hearing loss disability of the right ear and that the Veteran’s current hearing loss disability of the left ear is related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel