Citation Nr: 1808663	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  09-22 783	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for right knee osteoarthritis.

4.  Entitlement to service connection for pes planus.

5.  Entitlement to service connection for alcohol dependence, to include as secondary to service-connected major depressive disorder.

6.  Entitlement to service connection for cannabis dependence, to include as secondary to service-connected major depressive disorder.


REPRESENTATION

Appellant represented by:	James J. Perciavalle, Agent
ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel


INTRODUCTION

The Veteran served on active duty from April 1996 to January 2004, including service in Iraq in support of Operation Iraqi Freedom.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.  In a March 2008 decision, the RO denied the claims of entitlement to service connection for PTSD, hearing loss, tinnitus, and a knee disorder.  An October 2008 decision denied entitlement to service connection for bilateral pes planus.  

In a March 2014 decision, the Board recharacterized the psychiatric claim on appeal as a claim for service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, alcohol dependence, and cannabis dependence, among other disorders, to encompass other psychiatric diagnoses of record, consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Then, the Board granted entitlement to service connection for major depressive disorder; denied entitlement to service connection for alcohol dependence and cannabis dependence; and remanded to the agency of original jurisdiction (AOJ) the issues of service connection for PTSD, hearing loss, tinnitus, a right knee disorder, and pes planus. 

At that time, the Board indicated the Veteran had testified in June 2009 at a hearing before a decision review officer (DRO).  However, in a January 2010 supplemental statement of the case (SSOC), the RO had notified the Veteran that the transcript from the hearing had not been received and the RO had been unable to locate the recording of the hearing.  He was provided an opportunity to request another hearing, but did not do so.  In addition, in a January 2010 substantive appeal, he indicated he did not want a Board hearing.  Accordingly, the Board had found, and continues to find, that the Veteran was not prejudiced by proceeding to the merits of the case.

The Veteran appealed the Board's March 2014 action to the Court of Appeals for Veterans Claims (Court).  In an April 2014 Order, the Court vacated the part of the Board's decision that denied service connection for alcohol and cannabis dependence and remanded the case to the Board for further proceedings consistent with an April 2014 Joint Motion for Partial Remand.

In July 2014, the RO effectuated the Board's March 2014 decision, granting service connection for major depressive disorder and assigned a 70 percent disability rating, effective September 7, 2007, which was the date VA received the Veteran's claim of service connection for PTSD.  

In November 2014, the Board remanded the secondary service connection claims for alcohol and cannabis dependence to the AOJ for further development.

In a July 2017 rating decision, the AOJ granted service connection for tinnitus and assigned a 10 percent rating, effective from the date the claim was received on January 11, 2008.  After completing the requested development, the AOJ also readjudicated the claims for service connection for PTSD, bilateral hearing loss, right knee osteoarthritis, and bilateral pes planus in a July 2017 SSOC and returned the appeal to the Board.


FINDINGS OF FACT

1.  On July 8, 2016, prior to the promulgation of a decision on the appeal, the Veteran's agent withdrew on his behalf the appeal of the issues of entitlement to service connection for alcohol dependence and cannabis dependence.

2.  The most persuasive, probative evidence of record establishes that the Veteran does not meet the diagnostic criteria for PTSD.

3.  The Veteran currently has bilateral hearing impairment for VA purposes based on speech recognition scores and his assertions of in-service noise exposure are credible and consistent with the circumstances of his military duties as a cannon crewmember.

4.  A bilateral hearing loss disability was not manifested during service, a threshold shift in hearing acuity did not occur during service, sensorineural hearing loss was not shown during the first post-service year, and the most probative evidence indicates that the Veteran's current bilateral hearing loss is not otherwise related to his active service, to include conceded military noise exposure.

5.  The competent, probative evidence establishes that the right knee osteoarthritis diagnosed on x-ray examination in 2015 was not incurred during service, was not manifested to a compensable degree during the first post-service year, and is not otherwise related to military service, to include the contusions sustained in a 1996 car accident.

6.  Mild, asymptomatic pes planus was noted on military entrance examination; the most persuasive, probative evidence of record shows that the Veteran's bilateral pes planus did not increase in severity during service.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal of the claims for entitlement to service connection for alcohol dependence and cannabis dependence have been met.  38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for establishing service connection for PTSD are not met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2017).

3.  The criteria for establishing service connection for bilateral hearing loss are not met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).

4.  The criteria for establishing service connection for right knee osteoarthritis are not met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

5.  The criteria for establishing service connection for preexisting bilateral pes planus based on aggravation are not met.  38 U.S.C. §§ 1111, 1153 (2012); 38 C.F.R. § 3.306 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Withdrawn Appeal

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 (2012).  An appeal may be withdrawn by an appellant or by his authorized representative 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 (2017).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  Id. 

In the present case, the Veteran disagreed with the denial of service connection for alcohol dependence and cannabis dependence, each claimed as secondary to service-connected major depressive disorder.  In correspondence received on July 8, 2016, however, his accredited agent indicated on his behalf that he no longer wanted to pursue his appeal of these issues and expressed his wish to withdraw these pending VA appeals.  The Board finds that the statements from the Veteran's agent are explicit, unambiguous, and done with a full understanding of the consequences of such action.  DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).  Hence, there remain no allegations of errors of fact or law for appellate consideration regarding the issues of entitlement to service connection for alcohol dependence and cannabis dependence.  38 C.F.R. § 20.204.  Thus, the Board does not have jurisdiction to review the appeal of those issues and they are dismissed.

II. Duties to Notify and to Assist

Neither the Veteran nor his accredited agent has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Thus, the Board finds that VA does not have a duty to assist that was unmet.  Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011).

III.  Service Connection Claims

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).  In addition, service connection may 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).  

To establish direct service connection, there must be: the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship 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 for certain chronic diseases, including an organic disease of the nervous system (such as sensorineural hearing loss) and arthritis, may be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307(a).

A. PTSD

The particular requirements for establishing service connection for PTSD are separate and distinct from those for establishing service connection generally.  Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010).  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 in-service stressor occurred.  38 C.F.R. § 3.304(f).  

The Veteran contends that he has PTSD due to events during his military service in Iraq.  For example, in September 2007, he described an incident that occurred in March 2003 when his unit came under enemy small arms fire, mortars, and rocket-propelled grenades.  He reported instructing his crew to fire back, which resulted in his unit "kill[ing] a lot of enemy."  He described a second incident that occurred while traveling in a convoy in April 2003 when some tankers in front of him were attacked by the enemy.  He stated that when his unit passed by, he saw a man who had been killed and his son a couple feet away.  He reported another stressor that occurred in April 2003, involving two Iraqis who crossed a certain point at a security checkpoint and failed to heed a warning shot, resulting in the Veteran instructing a soldier to kill the driver and passenger.  

For purposes of establishing service connection for PTSD, 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.  38 C.F.R. § 3.304(f)(3).  

The Veteran's identified military stressors are the sort that involves fear of hostile military activity.  Consequently, if a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that a claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder 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.  Id.

The PTSD diagnosis must be made in accordance with the criteria of American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM).  38 C.F.R. § 4.125(a).  The Board notes that the Fifth Edition of the DSM (DSM-5) recently replaced the Fourth Edition of the DSM (DSM-IV).  Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to now refer to certain mental disorders in accordance with the DSM-5.  As the provisions of the interim final rule only apply to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014, the DSM-IV is applicable to claims certified to the Board prior to that date.  The Veteran's claim for service connection for PTSD was received in September 2007 and is properly evaluated under DSM-IV diagnostic criteria.

Turning to the evidence, the Veteran's service treatment records are silent for complaints, diagnosis, or treatment for psychiatric problems.  In reports of medical history at enlistment and separation in August 1995 and November 2003, respectively, he denied currently or ever having depression or excessive worry, nervous trouble of any sort, frequent trouble sleeping, or loss of memory or amnesia.  At separation, he also denied any history of being evaluated or treated for a mental condition or receiving counseling of any type.  In corresponding examination reports, his psychiatric function was reported as normal on clinical evaluation.

His service personnel records show he received an Army Commendation Medal in April 2003 for "combat performance."

In statements made in support of claims for disability benefits from VA and the Social Security Administration (SSA), the Veteran detailed his post-service work history to include as a contractor making ID cards in Iraq for two different companies from December 2005 to July 2007; as a clerk at a Pennsylvania liquor store from October 2007 to January 2008; and as a contractor in Iraq for another company from October 2008 to October 2010.

After returning from his first experience as a civilian contractor working in Iraq, the Veteran presented to the Patient Evaluation and Referral Center (PERC) at the Pittsburgh VA Medical Center (VAMC) in August 2007.  He reported that he had been having problems with depression, weight gain, poor sleep, anger, and being unable to keep a job, and his mother and ex-wife convinced him to seek help.  During a psychological assessment the same day, the Veteran denied any history of psychiatric treatment, described his current symptoms, and tearfully identified some traumatic situations during his military service in Iraq.  Following a mental status examination, the impression was rule out PTSD.  Several days later, the Veteran presented for an appointment with a VA psychiatry resident under the supervision of a VA psychiatrist.  He stated that his mother and ex-wife had observed him to be more irritable and edgy since returning home from Iraq in 2003.  He described his symptoms, including feeling sad about the people who died while he was in Iraq, but did not identify particular military stressors.  The assessment was PTSD; depression not otherwise specified (NOS).  Citalopram (Celexa) and Trazodone were prescribed.  

Later in September 2007, the Veteran returned to the Pittsburgh VAMC for an initial OEF/OIF (Operation Enduring Freedom/Operation Iraqi Freedom) primary care evaluation.  The examiner noted the Veteran became somewhat tearful at times when he discussed his military history and described often being in "a tense combat situation" such as experiencing enemy fire.

In October 2007, the Veteran presented for an initial evaluation at the VA PTSD Clinical Team (PCT) Clinic.  Under the supervision of a clinical psychologist, the psychology intern obtained a detailed history from the Veteran, including reported stressors from his tour in Iraq.  The examiner summarized the results from six psychological testing tools, indicating that the Veteran's testing was inconsistent with his verbal report and was indicative of symptom over-reporting.  The examiner added that the high scores on depression, anxiety, and indices of global distress were consistent with an overall global distress pattern and not a distress pattern specific to PTSD.  The examiner also detailed that the Veteran did not meet the criteria for a diagnosis of PTSD because he did not report any daytime intrusive thoughts or flashbacks, and although he reported some symptoms of increased arousal, such as "panic attacks," impaired concentration, and irritability, these symptoms were "not pervasive or consistent."  The examiner also explained that the Veteran did not report symptoms of avoiding reminders of his service experiences.  "On the contrary, he returned to Iraq to work as a private contractor."  The examiner concluded that the Veteran's "current distress primarily concern[ed] symptoms of depression and anxiety, such as feeling less motivated and interested in things, and stress and anxiety attacks, none of which appear[ed] to be related to posttraumatic stress."  The impression was adjustment disorder with mixed anxiety and depressed mood.  

The next day, the Veteran presented as a walk-in to the VA mental health clinic to meet with the psychology intern's supervisor, stating he was a bit confused and upset about the initial evaluation results because he was not diagnosed with PTSD when other providers had told him he might have PTSD.  The clinical psychologist explained that not everyone serving in a combat zone has a diagnosis of PTSD and that stressors in combat and readjustment to home can have lasting consequences in many forms, not just PTSD.  Several minutes later, the Veteran met for roughly 15 minutes with a VA psychiatry resident.  The assessment was PTSD and depression NOS, and the psychiatrist increased the dose of Citalopram.  Following a November 2007 follow-up psychiatry visit, the assessment was depression NOS, rule out PTSD.

Inpatient private treatment records dated in December 2007 reflect that the Veteran was admitted for endorsing suicidal ideation with a plan.  He reported a worsening of depressive symptoms since summer 2007.  The admission diagnosis was mood disorder NOS; rule out major depressive disorder without psychotic features; PTSD.  The discharge diagnosis five days later was mood disorder NOS; rule out PTSD; rule out major depressive disorder.

In November 2010, the Veteran was afforded a VA examination to determine whether he had a current PTSD disability attributable to the verified stressor involving his unit being subjected to small arms fire and mortar attack in Iraq.  The examination report reflects a detailed review of the claims file, a 90-minute interview, and psychometric testing.  The diagnosis included major depressive disorder and alcohol and cannabis abuse.  The examiner explained that psychometric testing results regarding depression symptoms were generally consistent with the Veteran's reports in the clinical interview.  In comparison, the examiner detailed that his scores on testing measures for PTSD were indicative of over-reporting and symptom exaggeration because he endorsed particular symptoms at higher rates on psychometric testing, but did not report such symptoms when directly asked in the clinical interview.

The examiner further explained that the Veteran did not meet the diagnostic criteria for PTSD because his response to the verified military stressor did "not include any feelings of intensive fear, helplessness, or horror associated with these events," and he "did not believe that his life was in danger during the time" of the event.  The examiner also explained that the Veteran was not reporting re-experiencing, avoidance and numbing, or hypervigilance or hyperarousal symptoms associated with his military tour in Iraq.

In October 2013, the Board requested an advisory medical opinion to identify all current psychiatric disabilities with opinions as to whether any psychiatric disorder was incurred in or otherwise related to the Veteran's service.  In January 2014, a VA clinical psychologist reviewed the evidence of record and opined that the preponderance of the evidence indicated the Veteran did not meet the diagnostic criteria for PTSD.  The reviewing psychologist explained that the evidence of record revealed the Veteran did not meet Criteria A or C for a diagnosis of PTSD under DSM-IV criteria.  Instead, the evidence demonstrated he had been "repeatedly diagnosed with depression," which the psychologist believed was related to the Veteran's military service. 

In May 2014, the Veteran submitted a VA Disability Benefits Questionnaire (DBQ) completed by a treating VA psychiatrist.  The diagnosis included major depressive disorder; alcohol dependence and cannabis abuse, each in remission; and anxiety disorder.

VA received the Veteran's SSA records in September 2014.  He claimed he was unable to work due to several psychiatric disorders, including depression and PTSD.  In July 2012, he participated in a psychological evaluation in connection with his claim for SSA disability benefits.  He reported he had PTSD due to his deployment in Iraq; however, the examination report reflects he did not describe particular military stressors.  The diagnosis included PTSD and major depressive disorder.  

The Veteran was afforded another VA PTSD examination in November 2016.  However, while he reported for other VA examinations scheduled one day earlier, he failed to appear for the PTSD examination.  To date, the Veteran has not offered any good cause for his failure to report to the examination and has not asked VA to reschedule the examination.  Therefore, the Board must decide the claim based on the evidence of record.  38 C.F.R. § 3.655(b). 

The Board has considered the medical and lay evidence of record and finds that service connection for PTSD is not warranted.

To the extent the Veteran contends that he has PTSD, he is not competent to provide such a diagnosis.  See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that PTSD is not the type of medical condition that lay evidence, standing alone, is competent and sufficient to identify); Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant").  However, he is competent to describe events he experienced during military service, to identify many symptoms associated with psychiatric impairment, and to report the onset and continuity of many symptoms associated with psychiatric impairment.

Here, the Board finds generally credible the Veteran's reported traumatic military experiences and emphasizes that the AOJ also found the reported events involving his unit coming under small arms fire and mortar attacks sufficient to satisfy the threshold criteria of exposure to a traumatic event for a PTSD diagnosis.  Despite credible evidence of exposure to traumatic military events, however, the Board finds the most persuasive evidence of record establishes that the Veteran does not have a current PTSD disability.  In this regard, the psychiatrists and psychologists who concluded the Veteran did not meet the diagnostic criteria for PTSD generally arrived at that conclusion after considering the Veteran's military stressor associated with fear of hostile military activity, the results of psychometric testing, and based on a thorough review of the evidence of record.  The records cited above which contain diagnoses of PTSD were not based on the type of in depth testing and clinical interviews which were conducted in connection with the examination reports cited above, nor did the clinicians provide a rationale for the PTSD diagnoses of record.  

Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a current disability.  38 U.S.C. § 1110.  The PTSD regulation specifically requires medical evidence of PTSD.  38 C.F.R. § 3.304(f).  The above analysis reflects the Veteran does not meet the diagnostic criteria for PTSD.  In addition, a claim for service connection for PTSD must be considered to encompass a claim for service connection for any psychiatric disorder where the evidence of record raises this issue.  Clemons, 23 Vet. App. at 4-5.  Here, the Board previously broadened the claim and granted service connection for major depressive disorder, which the RO rated as 70 percent disabling, effective September 7, 2007.

Accordingly, where, as here, there is competent and persuasive medical evidence establishing that the Veteran does not have a current PTSD disability, there can be no valid claim for service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In this case, the first essential criterion for a grant of service connection, evidence of a current PTSD diagnosis, has not been met.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's service connection claim for PTSD, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

B. Bilateral hearing loss

The Veteran contends he has a current bilateral hearing loss disability due to military noise exposure.

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 of 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.

The lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim.  The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, as noted by the Court:

[W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.

Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary).

The Veteran's service treatment records are silent for complaints or findings related to hearing loss.  During service, he underwent audiology examinations at enlistment, including a re-check, in March 2000, and at separation.  The March 2000 audiometry report indicates the audiogram was conducted as a "reference established following exposure in noise duties," with a remark that the Veteran was routinely noise-exposed.  In reports of medical history at enlistment in August 1995 and at separation in November 2003, the Veteran denied currently or ever having hearing loss, ear trouble, or running ears, or ever wearing a hearing aid.

The results of audiometric testing are recorded as follows:


HERTZ
Date
Ear
500
1000
2000
3000
4000
August 1995
(Enlistment)
RIGHT
5
5
5
5
10

LEFT
70
100
85
85
70
August 1995
(Enlistment Re-check)
RIGHT
5
5
5
10
5

LEFT
5
0
5
10
5
March 2000
(Reference)
RIGHT
-5
-5
-5
-5
0

LEFT
0
-5
0
5
0
November 2003
(Separation)
RIGHT
5
0
5
0
5

LEFT
5
5
5
15
0

The Veteran's DD214 identifies his military occupational specialty (MOS) as a cannon crewmember.  Service personnel records document his service in Iraq (and Kuwait) from January 2003 to July 2003.

During an initial VA primary care visit in September 2007, the Veteran reported having diminished hearing upon his arrival home from his military tour in Iraq.

The Veteran was afforded a VA audiology examination in November 2016.  While puretone threshold testing did not reveal hearing impairment for VA compensation purposes, speech discrimination scores did reflect impaired hearing in each ear.  Following a review of the claims file, the audiologist concluded the Veteran's MOS and lay statements supported a finding of noise exposure during military service.  

However, the audiologist opined it was not at least as likely as not that the Veteran's right or left ear hearing impairment was caused by or a result of his military noise exposure.  In support of the conclusion, the examiner emphasized there was no significant shifts to hearing acuity between entrance and separation examination.  In addition, the examiner explained that the Institute of Medicine reported in 2006 that based on current understanding of auditory physiology, hearing loss from noise injuries occurs immediately following exposure, and there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure.  Applying those conclusions to the Veteran's experiences, the examiner reasoned that given that there was no evidence that hearing loss or significant threshold changes occurred during the Veteran's military service, there was no basis on which to conclude that the current hearing loss was caused by or the result of military service, to include military noise exposure.  

Having considered the medical and lay evidence of record, the Board finds the preponderance of the evidence weighs against a finding that the Veteran's bilateral hearing loss was incurred in service or otherwise related to military service, including the conceded noise exposure.

Audiometric testing data in service do not meet the regulatory threshold requirements for a hearing disability either at enlistment or separation.  In addition, the audiometric testing results did not reveal any significant shift in hearing acuity between entrance examination in August 1995 and separation examination in November 2003.  

In other words, in the absence of any threshold shift during service, the service treatment records do not provide a medically sound basis to attribute the post-service findings of hearing loss to the noise injury in service.  See Hensley, 5 Vet. App. at 159.  Consequently, the service treatment records weigh against a finding that the Veteran's military noise exposure caused the current hearing loss disability.  The Board emphasizes that the Veteran's reports of in-service noise exposure are credible.  That an injury such as acoustic trauma occurred in service, however, is not enough to establish service connection.  Rather, there must be chronic disability resulting from that in-service injury or disease.  Based on these facts, the evidence of record suggests a post-service inception and cause of the hearing loss disability.

Turning to the medical opinion evidence, the Board finds the conclusions of the November 2016 VA examiner to be of significant probative weight because she explained the reasons for her conclusions based on an accurate characterization of the evidence of record, detailed examination findings, and consideration of pertinent medical treatise evidence.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  Moreover, the examiner's conclusion that there were no significant threshold shifts consistent with noise exposure between enlistment and separation is consistent with the evidence of record.

Finally, the Board has considered the Veteran's statements regarding an onset of hearing loss upon his return home from his military service in Iraq.  The Board recognizes the Veteran is competent to report symptoms such as difficulty hearing.  However, because the audiometric data on separation examination are nearly identical to those at enlistment, the Board finds the lay statements regarding an in-service onset of hearing loss less probative because they are contradicted by contemporaneous audiometric findings, which did not show a shift in measured hearing acuity.  The contemporaneous clinical evidence is entitled to more probative weight than the remote lay recollections of the Veteran as to whether a hearing loss disability was present during service.  Based on the foregoing evidence, the Board finds that service connection for the Veteran's bilateral hearing loss is not warranted. 

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's service connection claim for bilateral hearing loss, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

C. Right Knee 

The Veteran contends that he has a current right knee disability due to an injury sustained in a car accident during military service.

Service treatment records reflect the Veteran was evaluated at a civilian hospital emergency department in November 1996 after a car accident in which he was a passenger.  He complained of right knee and lower leg pain.  Right knee and right tibia and fibula x-rays were reported as normal.  The diagnosis was right knee and lower leg contusions and he was discharged the same day with crutches.  The Veteran underwent further evaluation and treatment in December 1996.  A physical therapy consultation request indicated the Veteran needed help with rehabilitation.  The provisional diagnosis was contusion; lateral collateral ligament and medial collateral ligament strain.  The assessment on consultation two days later was rule out right knee strain/sprain.  At the end of December 1996, the Veteran was discharged from physical therapy.  The assessment was resolution of right knee strain/sprain.

Service treatment records from the remaining his years of military service were entirely silent for complaints, diagnosis, or treatment for right knee problems.  In a November 2003 separation medical history report, the Veteran denied having any knee trouble or swollen or painful joints.  On separation examination the same day, his bilateral lower extremities were reported as normal on clinical evaluation.

Post-service VA and private treatment records dated from 2007 to 2016 are silent for complaints, diagnosis, or treatment for chronic right knee problems.  During an initial evaluation to establish VA medical care in September 2007, the Veteran denied pain symptoms in all body systems except for cervical spine pain.  An August 2012 VA primary care record documents the Veteran denied having any musculoskeletal complaints during a review of systems.

In compliance with the Board's March 2014 remand directives, the AOJ obtained the records associated with the Veteran's claim for SSA disability benefits.  Those records indicate that the Veteran asserted he was unable to work due to several claimed psychiatric disabilities.  An October 2013 disability determination and transmittal indicated the Veteran had been found disabled for SSA purposes due to psychiatric disability.

The Veteran was afforded a VA examination in November 2016.  He stated that after he completed physical therapy during service in 1996, he began to notice achy right knee pain in 1997.  He denied receiving further right knee treatment, adding he "did not complain about it."  He indicated he recently had a right knee x-ray and physical therapy was ordered, but he could not make the appointments and had not received any treatment.  In reviewing the claims file, the examiner observed that VA treatment records documented the Veteran had undergone bilateral knee x-rays, which revealed symmetrical mild degenerative joint disease to both knees, with an October 2015 physical therapy consultation report ordering evaluation for bilateral knee pain at a future date.  

The examiner opined it was less likely as not that the Veteran's current right knee degenerative joint disease or osteoarthritis had its onset during service or was otherwise related to service, including the 1996 contusions sustained in a car accident.  In support of the conclusion, the examiner emphasized that after completing physical therapy (in December 1996), the Veteran had no further treatment during service, examination findings were normal at separation examination and on initial VA examination in September 2007, and he had no treatment after separation from service until 2015 when he underwent x-ray examination for bilateral knee pain.  

Having considered the medical and lay evidence of record, the Board finds the preponderance of the evidence weighs against a claim for service connection for right knee degenerative joint disease.

While the Veteran sustained right knee contusions and a strain or sprain in the November 1996 car accident, seven years of subsequent service treatment records are silent for complaints of ongoing knee pain, and his lower extremities were normal on separation examination in November 2003.  Therefore, while the Board does not dispute he injured his knee in service, the service treatment records weigh against a conclusion that the Veteran's right knee injury resulted in chronic disability manifesting during service.  In fact, a December 1996 service treatment record indicated his right knee strain or sprain had resolved.

Considering the service connection claim for right knee disability on the basis of a continuity of symptomatology since the in-service injury, the Board further finds that the post-service medical evidence of record weighs against the claim.  Again, the Veteran denied having knee pain at the time he established VA medical care until he first complained of pain in both knees in 2015, more than ten years after separation from service.  The contemporaneous x-ray examination findings showing symmetrical arthritis in both knees logically weighs against the contention that the in-service injury caused the current right knee disability.  If that were the case, one would expect worse arthritis in the right knee that had been injured than in the uninjured, left knee.  

Finally, the Board finds the medical opinion of the November 2016 VA examiner persuasive and probative evidence against the claim because she explained the reasons for her conclusions based on an accurate characterization of the evidence of record and detailed examination findings.  See Nieves-Rodriguez, supra.  Moreover, the examiner's observations that there were no complaints or findings of right knee problems after the Veteran completed physical therapy in service until x-ray examination in 2015 showed symmetrical, bilateral knee osteoarthritis is consistent with the evidence of record.
 
In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's service connection claim for a right knee disability, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.



D. Bilateral Pes Planus

Pertinent to the Veteran's service connection claim for a bilateral flat foot disability (pes planus), Federal law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C. § 1111 (2012).  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. § 3.304(b) (2017).  

If a preexisting disability is noted upon entry into service, the veteran cannot bring a claim for service connection for that disability, but the veteran may bring a claim for aggravation of that disability.  In that case, section 1153 applies and the burden falls on the veteran to establish aggravation.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service.  Where the evidence shows that there was an increase in disability during service, there is a presumption that the disability was aggravated by service.  To rebut the presumption of aggravation, there must be clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability.  38 U.S.C. § 1153; 38 C.F.R. § 3.306(a) and (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.  38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition as contrasted to symptoms is worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991).

The Board finds that the first element necessary to establish service connection for bilateral pes planus, a current disability, is established because competent medical evidence of record documents a current bilateral pes planus disability.  See Shedden, 381 F.3d at 1167.  Specifically, VA podiatry records dated in September 2007 and October 2008 document bilateral pes planus.

Considering the Veteran's condition upon entrance to military service, his August 1995 entrance examination report noted his feet were abnormal on clinical evaluation.  The diagnosis was mild, asymptomatic pes planus.  Because bilateral pes planus was noted on examination when the Veteran was accepted and enrolled into service, the presumption of soundness as to bilateral pes planus does not apply.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  Therefore, his claim of service connection for bilateral pes planus must be considered based on a theory of aggravation of a preexisting disability.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.  

The Veteran's service treatment records are entirely silent for complaints or treatment related to pes planus or foot problems generally.  In a November 2003 separation report of medical history, he denied currently or ever having foot trouble, including pain, or impaired use of his feet.  On separation examination the same day, his feet were reported as normal on clinical evaluation with a specific finding of normal arches.

The records associated with the Veteran's claim for SSA disability benefits include a detailed work history.  After separation from active duty service, he worked as a private contractor in Iraq from December 2005 to July 2007; as a clerk at a liquor store from October 2007 to January 2008, and as a security guard from March 2008 to October 2008.

The Veteran first presented for VA medical care in August 2007.  A September 2007 VA podiatry consultation report indicates he was referred for evaluation of possible athlete's foot (tinea pedis) and pes planus.  Based on the Veteran's reported medical history and physical examination, the podiatrist noted he had mild pes planus, which was currently asymptomatic and had always been so.  As a result, no treatment of any kind was needed.  

VA received the Veteran's claim for service connection for flat feet in September 2008.  His former representative asserted on the Veteran's behalf that his flat feet disability "started in service."  

Later in September 2008, the Veteran presented to the VA emergency department reporting "discomfort in his feet for [a] couple months while walking or standing for hours due to his flat feet."  The emergency physician noted he did "not report any severe pain, change in sensation [or] weakness," but did complain of some itching and a history of athlete's foot.  The examiner ordered a podiatry consultation.  During an October 2008 podiatry consultation, the Veteran reported having pain in the medial arch bilaterally.  Examination revealed a "visually flat foot bilaterally;" however, there were no open wounds, edema, erythema, or hyperkeratosis.  The assessment included pes planus and the podiatrist prescribed full-length custom orthotics. 

In a notice of disagreement (NOD) filed on the Veteran's behalf in December 2008, his former representative reiterated the Veteran's contention that he did not have bilateral pes planus prior to service, arguing instead that it began during service.

In compliance with the Board's remand directives, the Veteran was afforded a VA examination in November 2016.  He stated that both his arches "fell" and became "totally flat" during service, and he started to experience foot pain.  He could not be more specific regarding the onset of his fallen arches and foot pain during service.  He denied any treatment for pes planus during service, but reported first receiving treatment for his feet in 2007.  He related that he received orthotics, but did not wear them due to pain.  He denied any history of foot surgery or injections.  Following a review of the claims file and examination, the diagnosis was mild bilateral pes planus.  

Observing that mild, asymptomatic pes planus was noted on entrance examination, the VA examiner opined that the Veteran's pes planus clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated beyond its natural progressions during service.  In support of the conclusion, the examiner emphasized that service treatment records were silent for any treatment for pes planus; post-service VA treatment records revealed that when the Veteran was first evaluated by a podiatrist in September 2007, his bilateral pes planus had remained asymptomatic; and there was no other evidence in the records to support the contention that the Veteran's mild, asymptomatic pes planus noted on enlistment was aggravated by military service.

Having considered the evidence of record, the Board finds that service connection for bilateral pes planus is not warranted.

Because the Veteran's mild, asymptomatic pes planus was noted on entrance examination in August 1995, the Veteran has the burden of showing there was a permanent increase in severity of bilateral pes planus during service.  He has not offered such evidence other than his lay statements regarding an in-service onset of pes planus, which are contradicted by the evidence of record. 

Notably, the reports of medical history at enlistment and separation in which the Veteran denied any history of foot trouble, including pain, support the conclusion that the pes planus noted at entrance was, in fact, asymptomatic and had remained asymptomatic throughout service.  Specifically, these service records document that the Veteran denied any history of perceived foot pain or foot problems.  In fact, the November 2003 separation examination report further confirms the mild, asymptomatic nature of the pes planus noted at entrance and lack of aggravation during service because the separation examiner concluded the Veteran's arches were normal.  Moreover, the September 2007 VA podiatry consultation report supports the conclusion that the Veteran's pes planus continued to be mild and asymptomatic.  Finally, the evidence of record clearly and unmistakably demonstrates that the Veteran first complained of pes planus symptoms several years after separation from service in the context of working full-time as a security guard and "walking or standing for hours."  See September 2008 VA emergency department note.

The only medical opinion to address whether the Veteran's bilateral pes planus noted on entrance examination increased in severity during military service is that of the November 2016 VA examiner.  

In short, the Board finds that the competent evidence, in the form of the service medical records, post-service treatment records, and medical opinion evidence, demonstrates that aggravation did not take place.  See 38 U.S.C. § 1153 (2012); 38 C.F.R. §§ 3.304 , 3.306(b) (2017); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (the mere occurrence of symptoms, in the absence of a demonstrated increase in the underlying severity, does not constitute aggravation of the disability).

For these reasons, the Board finds that the evidence shows that the Veteran's bilateral pes planus was noted on entrance examination to active military service, but was not aggravated during such service.  Accordingly, entitlement to service connection for bilateral pes planus is not warranted.


















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ORDER

The appeal as to the claim of entitlement to service connection for alcohol dependence is dismissed.

The appeal as to the claim of entitlement to service connection for cannabis dependence is dismissed.

Entitlement to service connection for PTSD is denied.

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for right knee osteoarthritis is denied.

Entitlement to service connection for bilateral pes planus is denied.



____________________________________________
K. Conner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs