Citation Nr: 18155098 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-33 783 DATE: December 3, 2018 ORDER Service connection for bilateral plantar fasciitis is dismissed. Service connection for tinnitus is granted. Service connection for posttraumatic stress disorder (PTSD) is denied. The application to reopen the claim of entitlement to service connection for bilateral hearing loss disability is denied. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal is requested as to the claim of service connection for bilateral plantar fasciitis. 2. Tinnitus is related to acoustic trauma in service. 3. The probative evidence of record reflects that the Veteran does not have a current diagnosis of PTSD. 4. In an unappealed August 1973 rating decision, the RO denied service connection for bilateral hearing loss disability. 5. The evidence received since the August 1973 rating decision is cumulative and redundant of evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant have been met as to the issue of service connection for bilateral plantar fasciitis. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. Tinnitus was incurred in wartime service. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 4.125. 4. The August 1973 rating decision denying service connection for bilateral hearing loss disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 5. New and material evidence has not been received to reopen the claim of service connection for bilateral hearing loss disability, the claim may not be reopened. 38 U.S.C. 5108; 38 C.F.R. 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1964 to April 1967. He appeals a September 2015 rating decision. In June 2018, the Veteran and his wife provided testimony before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At the hearing, the undersigned clarified the issues on appeal and made inquiry as to the existence of outstanding evidence as to the issues being decided. The actions of the VLJ comply with 38 C.F.R. § 3.103. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110, 1131. In general, to establish a right to compensation for a present disability, 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. See 38 C.F.R. § 3.306 (b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. See id. 1. BILATERAL PLANTAR FASCIITIS The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant withdrew this appeal at his June 2018 hearing before the undersigned. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. TINNITUS The Veteran testified that he has had ringing in his ears since his exposure to power saw noise while in the course of his duties as a meat inspector in Army. He testified: My MOS was food inspector, and I was around a gas-powered chainsaw 8 hours a day, 5 days a week, for 1-1/2 years at Durham Meat Company, Mountain View, California. In 1965, at times up to 10 power saws were going at once. The room was extremely noisy. My ears were ringing and painful. While in New Zealand, the (Inaudible) also used the same equipment, and it was extremely loud. We were not issued any kind of hearing protection. I have not had any employment that has exposed me to that level of noise. The Veteran further testified that he has had ringing in his ears since this exposure in service. The Board concludes that while the Veteran's tinnitus was not diagnosed during service, it was manifest in service, and there has been continuity of the same symptomatology since service. Tinnitus constitutes a chronic disease under 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a). Here, the disorder did manifest in service or within a presumptive period, and continuity of symptomatology is established as explained below. The Veteran has a current diagnosis of tinnitus, and in any event, is competent to identify the existence of this disorder because it is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran's DD 214 reflects that he was a food inspector specialist, consistent with his assertions. While the Veteran did not complain of tinnitus or ringing in the ears during active service, it is accepted that he had exposure to the acoustic trauma he described. While he did not file the tinnitus claim until he filed his May 2015 VA Form 21-526EZ and private treatment records note tinnitus from September 1979, he testified that he first noted it in service after exposure to chain saw noise. He also reported that the exposure was unprotected, and he did not think anything of it at the time. As ringing in the ears is capable of lay observation, and his statements are credible and entitled to probative weight because they are internally consistent and consistent with other evidence of record, continuity of symptomatology is established. The Board acknowledges the functionally negative opinion of the VA examiner in September 2015. Here, the examiner found that tinnitus was a hearing loss symptom and thus likely related to hearing loss, for which service connection is being denied. The examiner also found the Veteran’s MOS to have a low probability for noise exposure. However, the Board finds the Veteran's testimonial assertions as to acoustic trauma based on his specific assignments and continuity of tinnitus since service to be more probative as to nexus because they were fully explored at the hearing and are assessed as candid and credible by the this VLJ. The Board concludes that tinnitus was present since service. Service connection is thus warranted. 3. PTSD The Veteran contends he has PTSD due to in-service racial harassment. He testified that he was being sent to Vietnam and then rerouted to Okinawa, and there he was harassed severely due to his Asian heritage. Service connection for 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 claimed in-service stressor occurred. 38 C.F.R. 3.304 (f). The provisions of 38 C.F.R. 3.384, 4.125, 4.126, 4.127, and 4.130 were updated via a final rule, effective August 4, 2014, in part to substitute references to the DSM-IV for the DSM-5. The changes are applied to applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, but not to claims certified to or pending before the Board, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit. The Board notes that the appellant’s case was certified to the Board after the effective date of the final rule. Thus, the Board will refer to the DSM-5 criteria herein. As will be discussed below, service connection for PTSD is being denied due to the absence of a diagnosis of PTSD. Therefore, the Board will only address the element of service connection that is missing, i.e., competent evidence of a current disability. 38 C.F.R. 3.304 (f). 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 38 U.S.C. 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The VA medical treatment records are absent for any diagnosis of PTSD. The Veteran testified in 2018 that he is undergoing no current mental health treatment and that he has no current diagnosis of PTSD or mental health problems. He testified that he did get a prescription in the past for Paxil from Dr. I. He noted he received the medication because he could not sleep and if he could not sleep he drank ‘a lot’. He also testified that it had been 50 years and ‘it’ was kind of mild now. Private treatment records from 1979 to 1994 reflect one encounter in November 1992 wherein Wellbutrin was prescribed for depression and insomnia and one in November 1994 wherein Paxil was prescribed but there is no clear diagnosis provided. VA treatment records dated in 2015 reflect a negative PTSD screening as well as a September 2015 psychological evaluation in which the psychologist made a finding of no diagnosis. The Veteran had reported that he was treated poorly (presumably in service) because he was a person of Japanese heritage. It was noted that the Veteran identified a brief history of psychotropic treatment with Paxil but did not want to engage in mental health treatment. Therefore, there is no diagnosis of PTSD in accordance with 38 C.F.R. 4.125 (a) at any time during the appeal or proximate to the service connection claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013). The Board recognizes the Veteran’s belief that he has PTSD. The Veteran and his wife are competent to attest to lay-observable symptomatology; however, they are not competent to diagnose PTSD. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In a claim of service connection for PTSD, there is a legal requirement that the diagnosis of PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. 4.125, that is, a diagnosis that conforms to the DSM-5. 38 C.F.R. 3.304. Accordingly, the diagnosis of PTSD is a complex medical question. Neither the Veteran nor his wife has been shown to possess the requisite medical expertise or knowledge to diagnose PTSD in accordance with the DSM-5. Therefore, their statements regarding PTSD are not considered competent and are not probative as to whether the Veteran has a diagnosis of PTSD. As stated above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich, 104 F. 3d at 1328. In the absence of evidence of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. Evidence must show that the Veteran currently has the disability for which benefits are being claimed. There is no evidence of a competent diagnosis of PTSD. In light of the absence of a competent diagnosis of PTSD, service connection for PTSD is denied. 38 C.F.R. 3.304 (f); 4.125. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. 38 U.S.C. 5107 (b); 38 C.F.R. 3.102. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). 38 C.F.R. § 3.156 (a) creates a low threshold. Shade v. Shinseki, 24 Vet. App 110 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. 4. BILATERAL HEARING LOSS DISABILITY In an August 1973 rating decision, the RO denied the claim of service connection for bilateral hearing loss on the basis that the Veteran’s bilateral high-frequency hearing loss pre-existed service and was not aggravated by service. No notice of disagreement or new and material evidence was submitted within one year and the decision became final. Evidence considered in August 1973 included the Veteran’s July 1973 VA form 21-526 claim, as well as his service treatment records (STRs) and his DD 214 showing his MOS. The STRs showed audiometric examination on entry to service was within normal limits with the exception of hearing loss demonstrated by a 40 decibel (dB) loss at the 4000 Hertz (Hz) frequency bilaterally. See 38 C.F.R. § 3.385. Audiometric examination in May 1965 also showed hearing loss with a 70 dB loss at the 4000 Hz frequency bilaterally and a 65 and 40 dB loss in the right and left ear respectively at 3000 Hz. On examination at separation, no audiometric examination was made and hearing was recorded in whispered voice at feet as 15/15 bilaterally. The examiner summarized the Veteran’s defects and diagnoses as high frequency hearing loss/not considered disabling. In May 2015 the Veteran made application to reopen the previously denied claim. In his 2018 testimony before the undersigned, he has argued, generally, that he experienced acoustic trauma in service and that he now has resulting hearing loss. However, his testimony was more focused on tinnitus, for example he stated, “Yeah, I had ringing in my ears, but as far as my hearing goes, I wouldn’t know. It’s people that I talk to that tells me that, hey, are you hard of hearing? But, as far as I’m concerned I can hear good.” Private treatment records dated in September 1979 show bilateral high frequency defect with tinnitus, moderate/periodic evaluation advised. These do not indicate that the hearing loss that pre-existed service was aggravated by service. In September 2015, the Veteran underwent a VA audiological examination by an examiner who reviewed the record and examined the Veteran. The examiner opined that the pre-existing hearing loss was not aggravated beyond normal progression in military service. The examiner found no significant threshold shifts in service. The Veteran’s service personnel records are consistent with his DD 214 in the critical point that he was a food inspector as he has described. The Board finds that the evidence submitted since the 1973 denial is redundant or cumulative of the evidence of record at the time of the last prior final decision. The RO had previously considered the Veteran’s STRs, his duties in service and his assertions that his current hearing loss was related to service. The examiner’s negative opinion does not raise a reasonable possibility of substantiating the claim, as she found, most significantly, no threshold shift and no worsening in service. While the Board acknowledges that the examiner states there was low probability of noise exposure based on the Veteran’s MOS, that finding is not critical to her conclusion that there was no threshold shift in service. The Board reasonably infers that she analyzed the data in the STRs to make this conclusion as to lack of threshold shift. The Veteran’s and his wife’s testimony are not new and material because they are cumulative. The critical facts have not changed: there was no threshold shift in service and no worsening of the pre-existing bilateral hearing loss in service. (Continued on the next page)   Consequently, the claim may not be reopened because no new and material evidence has been received demonstrating that the Veteran’s bilateral hearing loss is related to service. While 38 C.F.R. § 3.156 (a) creates a low threshold, and does not require new and material evidence as to each previously unproven element of a claim, the Veteran has not presented new and material evidence with respect to any previously unproven element of the claim. The claim to reopen is denied. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. RIPPEL