Citation Nr: 1808588 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-02 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a left eye disability, to include impaired vision. 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from June 1995 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) from March 2012 and October 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in July 2015. In November 2015, the Board remanded the matters, noting multiple psychiatric diagnoses of record, and thus, the Board characterized the claim broadly as one of entitlement to service connection for a psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In an August 2016 rating decision, the RO granted service connection for dysthymia assigning a 70 percent rating, effective March 14, 2012. Subsequent correspondence from the RO has informed the Veteran that the claim of service connection specifically for PTSD is still on appeal. Thus, although the claim was previously characterized more broadly as one for a psychiatric disorder, the Board will now consider solely the psychiatric disorder of PTSD. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (two psychiatric disabilities "could have different symptoms and it could therefore be improper in some circumstances for the VA to treat these separately diagnosed conditions as producing only the same disability"). In an April 2017 submission, the Veteran waived initial RO consideration of additional evidence associated with the claims file since the issuance of the April 2017 supplemental statement of the case (SSOC). The issues of service connection for a left eye disability and hearing loss are addressed in the decision below. The issues of entitlement to service connection for a left knee disability and a psychiatric disorder, other than persistent depressive disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. A left eye disability, to include impaired vision, did not have its onset during service and is not a result of service. 2. The Veteran does not have hearing impairment for VA purposes in either the right or left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a left eye disability, to include impaired vision, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.9 (2017). 2. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Although the Board is remanding other issues for further development, remand is not necessary for the claims decided herein as there is no reasonable possibility that further assistance would substantiate these claims. See 38 C.F.R. § 3.159(d). I. Laws and Regulations 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; 38 C.F.R. § 3.303. "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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For 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, 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. II. Analysis A. Left Eye The Veteran seeks service connection for a left eye disability, to include impaired vision. He maintains that he has impaired vision in his left eye as a result of service, to include having had mo-gas spilled in his left eye during service. The August 1994 service entrance examination report shows that the eyes, pupils, and ocular motility were normal. Ophthalmoscopic examination was normal. A February 1996 service treatment record (STR) reflecting complaints of blurred vision in the left eye notes a history of treatment the night before for a head injury. On examination, symptoms were reported to include twitching in the left eye and some blurriness. Visual acuity was 20/30 in the left eye and 20/20 in the right eye. A September 1997 service treatment record reflecting complaints of a decrease in vision notes a history of having had mo-gas spilled in his left eye with treatment for such in Kuwait. At separation in October 1997, a history of vision loss as a result of having mo-gas splashed in to his left eye during service in Kuwait was noted. Vision was reported to be 20/20 and it was noted that he denied wearing glasses and contacts. No left eye pathology was identified on VA examination in October 2011, and no cataracts or retinopathy were specifically noted. The Board notes that although dry eyes were noted in a January 2012 VA treatment record, such was not related to service, to include a history of mo-gas splashed in the left eye during service. To the extent VA treatment records note a history of dry eyes secondary to diesel fuel in the left eye during service, and although STRs document mo-gas having splashed in to the Veteran's left eye during service, a bare transcription of lay history is not transformed into competent medical evidence merely because the examiner happens to be a medical professional. See LeShore v. Brown, 8 Vet. App. 406 (1995). Stated differently, although the Veteran is competent to report his symptoms, to include that he has vision problems, diagnosing an eye disability is not subject to lay observation. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Veteran is not competent to diagnose an eye disability and/or provide an opinion as to causation for this particular claim. VA treatment records in December 2015 note eye drops for allergies in September 2011. In addition, in July 2013, good visual acuity was noted, and pupils were equal and reactive to light, extraocular movements were full, and confrontation fields were full. It was noted that the Veteran did not bring his glasses but had previously been given a prescription in phoropter 20/20-3. In addition, a left eye lid abrasion was noted to be well-healed in July 2014. Further, and although the Veteran stated at the hearing that an eye specialist noted degeneration in his left eye, the record was held open for the submission of additional evidence in that respect but no additional evidence showing left eye degeneration has been associated with the claims file. VA treatment records in September 2017 specifically note no macular degeneration or glaucoma in July 2013 and August 2013. A VA examination was conducted in January 2016 pursuant to the Board's remand. The report reflects a history of distance vision of 20/20 in both the left and right eye in August 1994 and July 1995. Although refractive error was diagnosed, refractive errors are not considered diseases or injuries for VA purposes, and provide no basis for service connection. 38 C.F.R. §§ 3.303(c), 4.9; Beno v. Principi, 3 Vet. App. 439, 441 (1992). In addition, and although xanthalsma of both upper eye lids was also diagnosed, the January 2016 VA examiner concluded that there is no disability or impaired vision related to the injury of being splashed with gasoline in the left eye. In March 2017, the examiner added that it is less than likely that a left eye disability/visual impairment is related to service, to include as a result of having gas splashed in to his left eye, noting no loss of vision and no residual left eye pathology or disability. To the extent it was asserted in the Veteran's representative's September 2017 brief that the January 2016 VA report of examination is inadequate, it has been held that the Board is entitled to assume the competence of a VA examiner. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (explaining that "the Board is entitled to assume the competence of a VA examiner," and the appellant bears the burden of rebutting the Board's presumption of competence); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) ("Absent some challenge to the expertise of a VA expert, [there is] no statutory or other requirement that VA must present affirmative evidence of a physician's qualifications in every case as a precondition for the Board's reliance upon that physician's opinion."). The examination was conducted by an optometrist. The Veteran has not provided any specific assertions as to why the VA examiner who conducted the January 2016 and/or any other relevant VA examination report during the appeal was not qualified, why the examiner should not be presumed competent, or to the extent asserted, how he was harmed by the perceived failure to provide him with the examiner's credentials. As a result, the Board finds that the relevant VA examiner is competent. Moreover, the January 2016 opinion is adequate for deciding the claim as it is persuasive due to the examiner's consideration of the Veteran's history and by explaining the conclusions. In reaching this conclusion, the Board has considered the lay evidence of record. Although the Veteran is competent to report his symptoms, to include that he has vision problems, and/or that his prescription lenses have been increased twice since the October 2011 VA examination, diagnosing an eye disability is not subject to lay observation. Additionally, while it may by intuitive that the remote in-service eye injury may result in a current eye problem, this is a complex medical question that a medical expert has commented on. In sum, the preponderance of the evidence is against the claim; there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for a left eye disability, to include impaired vision, is not warranted. B. Hearing Loss The Veteran contends that he has hearing loss as a result of noise exposure during service. His military occupational specialty (MOS) was cavalry scout. The Veteran has already been service connected for tinnitus due the in-service noise exposure. At the time of the November 2015 Board remand, the evidence did not show that the Veteran had hearing impairment for VA purposes under 38 C.F.R. § 3.385, including from testing during an October 2011 VA examination. A December 2015 VA examination report was conducted pursuant to the Board's remand. The examination report reflects no hearing threshold worse than 15 decibels for the relevant frequencies. The Board notes that sensorineural hearing loss in the right ear was reported only in the frequency range of 6000 Hz or higher, and thus, the right ear still does not meet the criteria for hearing impairment under 38 C.F.R. § 3.385. Because a current disability is not shown for the claimed hearing loss, service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent it was asserted in the Veteran's representative's September 2017 brief that the December 2015 VA report of examination is inadequate, it has been held that the Board is entitled to assume the competence of a VA examiner as detailed above. See Cox, 20 Vet. App. at 569; Rizzo, 580 F.3d at 1291. The examination was conducted by an audiologist. The Veteran has not provided any specific assertions as to why the VA examiner who conducted the December 2015 and/or any other relevant VA examination report during the appeal was not qualified, why the examiner should not be presumed competent, or to the extent asserted, how he was harmed by the perceived failure to provide him with the examiner's credentials. As a result, the Board finds that the relevant VA examiner is competent. Moreover, the report is adequate for deciding the claim because the showing of no hearing impairment was based on the requisite audiometric testing. As such, the preponderance of the evidence is against the claim of service for hearing loss and there is no doubt to be resolved. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, service connection for hearing loss is not warranted. ORDER Service connection for a left eye disability, to include impaired vision, is denied. Service connection for hearing loss is denied. REMAND The Board finds that a remand of the issue of entitlement to service connection for PTSD is in fact present and, if so, whether it is related to in-service stressors. The Veteran's DD FORM 215 associated with the claims file in January 2017 shows that the Veteran served in Kuwait from February 20, 1997 to June 16, 1997. In addition, service personnel records reflect that the Veteran's MOS was cavalry scout, and that he was discharged due to adjustment disorder with depression. The Board notes that to establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. There must be medical evidence diagnosing PTSD; a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the criteria of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM). During the appeal period, the criteria of DSM-IV initially applied but, following a revision to the DSM, VA now recognizes the application of DSM-5. Effective July 12, 2010, VA amended its adjudication regulations which eliminated the requirement of evidence corroborating the occurrence of the claimed in-service stressor in claims in which PTSD was diagnosed in service and in some claims in which the claimed stressor is related to the claimant's fear of hostile military or terrorist activity. Specifically, 38 C.F.R. § 3.304(f) was amended to read that if a stressor claimed by a Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "Fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. As noted in the April 2014 VA examination report, the Veteran had a positive PTSD screen in September 2011 and September 2013, and had negative PTSD screen in October 2012. VA treatment records in September 2017 reflect complaints of night sweats associated with stressful experiences during service in Kuwait, to include burning buildings. Anxiety disorder, not otherwise specified, was noted in January 2012, and nightmares about combat experiences during service in Kuwait were noted in January 2013. The January 2015 VA examination report states that symptoms during service progressed in to dysthymia, currently diagnosed as persistent depressive disorder, noting that the Veteran did not meet the criteria for a diagnosis of PTSD. However, in view of the evidence, to include VA treatment records in January 2018 reflecting a diagnosis of PTSD in December 2017, a new VA examination is warranted. Furthermore, although the RO informed the Veteran that the PTSD claim was still on appeal, the April 2017 SSOC that was issued after the Board's remand did not include the claim. Thus, on remand, the PTSD claim should be considered again by the RO and, if denied, an SSOC should be issued. With respect to a left knee disability, as noted in the November 2015 Board remand, the Veteran testified to having had a left knee injury while stationed at Fort Hood, Texas, during service in approximately the early fall of 1997 when a tank plate slammed in to his knee. He noted having been treated at the hospital, having been profiled for the left knee injury, and having used crutches for approximately four months thereafter. He added that his doctor told him that he currently has a resulting deteriorated muscle or torn ligament of the left knee. Although service treatment records from Fort Hood, to include in September 1997 and October 1997, are among the service personnel records, service treatment records are negative for a left knee injury. Lending credibility to the Veteran's assertion, however, is a July 1999 VA treatment record reflecting a history of direct trauma from the lateral side of the knee during service. Although a January 2017 response to the RO's Personnel Information Exchange Records (PIES) request for records from July 1997 to December 1997 from Fort Hood reflects that no additional records were available, in view of the Veteran's assertions and the evidence above, as well as VA treatment records in September 2017, to include August 1998 records reflecting complaints of left knee pain for one year and noting treatment at the "TRMC" as a result of a left knee injury during service, assessed as patellar bursitis and chondromalacia, the Veteran should be afforded a VA examination with respect to his left knee disability. Accordingly, these issues are REMANDED for the following actions: 1. Attempt to obtain treatment records pertaining to the left knee in 1998 from the "TRMC." If such records are unavailable, the Veteran's file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA left knee examination by an appropriate medical professional. The entire claims file must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a left knee disability is related to his active service. A rationale for all opinions expressed should be provided. 3. Schedule the Veteran for a VA examination with a psychiatrist or psychologist in connection with the PTSD claim. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is to provide a diagnostic opinion as to whether the Veteran meets the criteria for having PTSD under DSM-IV or DSM-5. If so, the underlying stressors should be identified. If not, the reason why PTSD is not a proper diagnosis should be explained in full. A rationale for all opinions expressed should be provided. 4. Finally, readjudicate the issues remaining on appeal, including the PTSD service connection claim. If any benefits sought remain denied, issue an SSOC and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs