Citation Nr: 18158510 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 13-31 176A DATE: December 18, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of a current acquired psychiatric disability, to include PTSD, that is etiologically linked to service or to a verified in-service stressor. 2. Tinnitus was not shown to be present in service, manifested to a compensable disabling degree within the first year after the Veteran completed his service, or related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disability, claimed as PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125. 2. The criteria establishing entitlement to service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Army from September 1969 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2011 and July 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Louisville, Kentucky, and Montgomery, Alabama, respectively. The Veteran testified before the undersigned Veterans Law Judge in a January 2016 video conference hearing. In May 2016, the Board remanded these claims for additional development. The evidence, set forth below, indicates that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for listed chronic diseases, such as tinnitus, if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). 1. Acquired psychiatric disorder, to include PTSD. The Veteran contends that he is currently diagnosed with an acquired psychiatric disorder, to include PTSD, and that it was incurred in service. In the May 2016 Board decision, the Veteran’s claim was remanded to obtain a VA psychological examination to diagnose the onset and etiology of any acquired psychiatric disorder, to include PTSD, and to verify the claimed stressor event. Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether the veteran “engaged in combat with the enemy.” Id. If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran’s lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). No further development or corroborative evidence is required, provided that the claimed stressor is “consistent with the circumstances, conditions, or hardships of the veteran’s service.” Id. If, however, VA determines that the veteran did not engage in combat with the enemy, or that the alleged stressor is not related to combat, the veteran’s lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran’s testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). If a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to “fear of hostile military or terrorist activity,” then the veteran’s testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen, 10 Vet. App. at 142-43; Moreau, 9 Vet. App. at 394 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Turning to the evidence of record, the Veteran’s service treatment records are silent for a diagnosis or symptoms of an acquired psychiatric disorder, to include PTSD. While the Board notes the annotation that the Veteran is a “worrier” in the July 1969 pre-induction medical examination, and an April 1970 record that stated he experienced trouble with his nerves in basic training, the May 2018 VA examiner stated that there is no clear and unmistakable evidence that shows the Veteran entered service with a pre-existing psychiatric disability because the presence of a symptom does not necessarily indicate that the criteria for a mental disorder diagnosis is met. In May 2018, the Veteran underwent a VA psychological examination. The VA examiner determined that the Veteran’s symptoms did not meet any of the diagnostic criteria for PTSD under the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5) criteria. The examiner noted that the Veteran was not exposed to actual or threatened death, serious injury, or sexual violence; did not have intrusive symptoms associated with the traumatic event; did not persistently avoid stimuli associated with the traumatic event; did not have negative alterations in cognitions and mood; and did not have marked alterations in arousal and reactivity. Further, the examiner determined that the Veteran does not have any other mental disorders; therefore, a diagnosis could not be made. The examiner supported these findings by stating that the “Veteran did not see or know what happened at the time, but he later found out that a grenade had detonated in a training accident 100 yards from him and killed two servicemembers. He heard the noise and saw the commotion. He did not know the servicemembers. He found out later what had occurred when he got on the bus to leave the area.” The examiner went on to state that “while distressing, [the Veteran’s] stressor does not appear to clearly conform to DSM-5 PTSD stressor criteria” and that this stressor was not considered related to fear of hostile military activity. While private practitioner D.V. stated in an October 2012 VA disability questionnaire that the Veteran had mild, delayed-onset PTSD, he also noted that the Veteran’s symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. Additionally, D.V. indicated that the Veteran does not have any other diagnosed mental disorders. The diagnosis of PTSD appears to be based, at least in part, on the Veteran’s statement that he “saw someone killed in basic training,” which is inconsistent with the Veteran’s other statements to the VA examiner and under oath at the Board hearing. Compare January 2012 private treatment record with July 2012 Statement in Support of Claim, and January 2016 Board Hearing Transcript, and May 2018 VA Examination Report. Moreover, the October 2012 VA disability questionnaire is not complete as D.V. did not endorse any of the PTSD-diagnostic criteria, nor did he indicate any reported symptoms or provide a rationale for his opinion. Consequently, the Board finds that the private medical opinion is inadequate for appellate review purposes; thus, the Board gives more probative weight to the May 2018 VA examiner’s findings that the Veteran does not have a current diagnosis of PTSD. Additionally, the Board acknowledges the Veteran’s statements of post-service treatment in 1971 and 2012. See July 2012 Statement in Support of Claim. However, the Board finds the Veteran’s lay assertions regarding continuous or frequent symptoms after his separation in 1971 to be not credible or probative. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). In this regard, the post-service medical evidence is inconsistent with the Veteran’s lay assertions regarding frequent or persistent psychiatric symptoms from the time of his military service. See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010); Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (the Board can use inconsistent statements, among other factors, to impeach the credibility of a witness). The Board emphasizes that contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date. Curry v. Brown, 7 Vet. App. 59, 68 (1994). In particular, the Veteran’s 1971 separation examination indicated that he did not have any psychiatric disorders. Moreover, the record is silent for any mental health treatment until 2012 when the Veteran sought treatment from the aforementioned private practitioner. While the Veteran believes he has a current diagnosis of an acquired psychiatric disorder, to include PTSD, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic testing. Jandreau, 492 F.3d at 1377, n.4. Consequently, the Board gives more probative weight to the competent persuasive medical evidence, specifically the May 2018 VA examiner’s findings. Moreover, the question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. Here, the Veteran asserts that his PTSD resulted from an alleged 1969 incident during basic training where two servicemembers were killed during a training exercise at the grenade range at Fort Benning, Georgia. As an initial matter, the Board remanded the Veteran’s claim for further development, specifically directing the RO to contact the U.S. Army Crime Records Center with the Veteran’s unit information to try and verify the claimed stressor. In March 2018, the RO contacted the U.S. Army Crime Records Center to verify the claimed stressor event that allegedly occurred while the Veteran was stationed at Fort Benning, Georgia, in 1969. In May 2018, VA received a negative response to its request noting that the records sought exceed the 40-year retention period for such records. The Board finds there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In any event, the Veteran testified that he did not see the events leading to the deaths of the two servicemembers in 1969, and has stated that he did not know either servicemember. Additionally, he testified that he was not in close proximity to the explosion as he was behind a concrete barrier on the grenade range. See January 2016 Board Hearing Transcript. The Veteran submitted two buddy statements from C.S. and T.G. in which they each contend that during basic training they “recall[ed] the incidence where there were two servicemen killed due to a grenade explosion during training at the grenade range. [They] were quickly ordered to go back to the barracks.” These statements while supportive of the occurrence of the claimed stressor event, do not otherwise change the fact that the Veteran did not personally observe the event and that because he did not personally observe the event the VA examiner did not find a stressor sufficient to cause a chronic mental disability. Consequently, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current acquired psychiatric disability that was incurred in service; thus, entitlement to service connection for an acquired psychiatric disability, to include PTSD, is not warranted. 2. Tinnitus. The Veteran asserts that he developed tinnitus as a result of his military service. Service connection may also be granted for listed chronic diseases, such as tinnitus, if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Veteran first filed a claim for entitlement to service connection in December 2010. In March 2011, the RO issued a rating decision denying entitlement. The Veteran filed a timely June 2011 notice of disagreement. In October 2013, the RO issued a statement of the case. The Veteran filed a timely June 2014 VA Form 9; thereafter, the RO certified the appeal to the Board through a June 2014 VA Form 8. The appeal was remanded in a May 2016 Board decision. The RO then issued an October 2018 supplemental statement of the case, and certified the appeal back to the Board in a November 2018 VA Form 8. Turning to the evidence of record, the Veteran’s service treatment records are silent to complaints of or a diagnosis related to tinnitus. Upon separation from service, a March 1971 Report of Medical History prepared and signed by the Veteran shows he reported hearing loss. Post-service treatment records reflect that the Veteran first claimed having tinnitus in a December 2010 Statement in Support of Claim. Specifically, he claimed that he was exposed to acoustic trauma “while repairing/driving heavy equipment,” and “artillery firing during field exercises.” His DD Form 214 confirms his military occupational specialty was a wheel and track mechanic, along with a badge for rifle marksmanship. Resolving doubt in favor of the Veteran, the Board finds that the Veteran has a current diagnosis of tinnitus; thus, the first element required for service connection, a current disability, is conceded. Further, based upon the Veteran’s DD Form 214, the Board concedes the second element, an in-service incurrence. Therefore, the question before the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran underwent a VA examination in conjunction with his claim in February 2011. The examiner noted that the Veteran’s pre-induction physical dated in July 1969 indicated hearing within normal limits bilaterally. The examiner observed that there were three different audiograms in March 1971. The March 1, 1971 evaluation indicated a severe high frequency hearing loss in the right ear and moderately-severe high frequency hearing loss in the left ear. The March 16, 1971 evaluation indicated hearing within normal limits bilaterally (with thresholds of zero at every frequency). The March 23, 1971 evaluation indicated hearing within normal limits bilaterally. The examiner maintained that the hearing loss recorded on March 1, 1971 was most likely a temporary threshold shift. The examiner questioned the validity of the thresholds obtained on March 16, 1971, and indicated that the thresholds obtained on March 23, 1971 were a truer representation of the Veteran’s hearing at that time. The examiner concluded that the Veteran did not sustain hearing loss in service. In regard to tinnitus, the examiner noted that the Veteran reported having bilateral, recurrent tinnitus, but that it is not present in the mornings, and “ramps up during the day” and becomes pulsatile at night. The Veteran reported that he notices the tinnitus worsening when he gets excited or anxious. Although the Veteran denied any problems with anxiety or having been diagnosed with any anxiety disorder, the VA examiner opined that “his tinnitus could very well be related to his anxiety as observed in the booth” because “it was worse in the booth when we finished the testing than when we began.” The examiner noted that she had to instruct the Veteran to “relax due to fidgeting, rocking, and grimacing during the test.” The examiner opined that the Veteran’s intermittent tinnitus was not related to service. The Veteran underwent a second VA examination in June 2018 pursuant to the Board’s remand instruction to obtain an opinion that addresses whether the Veteran’s tinnitus is secondary to an acquired psychiatric disorder. The examiner noted that the Veteran’s service treatment records revealed no record of complaints or treatment for tinnitus, and that objective evidence revealed normal bilateral hearing sensitivity and no significant threshold shifts at any test frequency in either ear, and opined that this evidence negated any noise injury in either ear while in service. The examiner further noted that the Veteran first reported the onset of tinnitus to be approximately 10 years ago. The examiner concluded that it was less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure, and supported this conclusion by explaining that it is widely accepted that noise-induced tinnitus occurs at the time of noise exposure, and does not develop years later. As to whether the Veteran’s tinnitus was caused by or aggravated by an acquired psychiatric disability, the examiner explained that it is outside the scope of her practice to opine on a psychiatric disability; thus, she could not provide an opinion. Taken together, the VA opinions of record establish that the Veteran’s tinnitus is not at least as likely as not related to an in-service injury, event, or disease. The February 2011 VA examiner opined that the Veteran’s tinnitus was not at least as likely as not related to service and likely due to anxiety, while the June 2018 VA examiner opined that the Veteran’s tinnitus was not at least as likely as not related to service because of the length of time between service and the onset of tinnitus. The examiners’ combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, the Veteran’s tinnitus cannot be service connected on a presumptive or continuity of symptomatology basis as a chronic disease. 38 C.F.R. §§ 3.307, 3.309. Chronic diseases, including tinnitus due to acoustic trauma, may be service connected on the following bases: 1) a chronic diagnosis in service linked to the same chronic diagnosis after service; 2) a chronic diagnosis or symptoms thereof within a year of separation; or 3) continuity of symptomatology. As described above, there was no diagnosis of tinnitus in service or within a year of separation. Additionally, the record does not contain persuasive evidence weighing in favor of continuity of symptomatology. Indeed, it was not until 2010 that tinnitus was first reported. To the extent that the Veteran contends that the condition began in service, this contention is inconsistent with the objective medical evidence of record and evidence contemporaneous to service. Accordingly, service connection is not warranted on a presumptive or continuity of symptomatology basis. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service to our nation for which the Board is grateful. However, after careful consideration, the Board concludes that the probative evidence of record weighs against a finding that the Veteran’s tinnitus is related to his military service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ohlstein, Law Clerk