Citation Nr: 1815488	
Decision Date: 03/15/18    Archive Date: 03/23/18

DOCKET NO.  12-31 370	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to service connection for tinnitus.

2. Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD) and anxiety.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Peden, Associate Counsel




INTRODUCTION

The Veteran had active service from July 1980 to November 1980 with additional period of service from October 2001 to September 2002, and from February 2003 to February 2004.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.


FINDINGS OF FACT

1. Resolving reasonable doubt in his favor, the Veteran has tinnitus attributable to his active military service.

2. The Veteran does not have PTSD that is related to a verified in-service stressor or fear of hostile military or terrorist activity; he did not engage in combat and there is no credible evidence corroborating the Veteran's alleged in-service stressors.

3. An acquired psychiatric disorder, to include an anxiety disorder, did not manifest in service and is not otherwise related to service.


CONCLUSIONS OF LAW

1. The Veteran has tinnitus that is the result of disease or injury incurred during active military service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 

2. An acquired psychiatric disorder, to include PTSD and anxiety, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. § § 5103, 5103A; 38 C.F.R. § 3.159 (2017). The duty to notify has been met. See VA correspondence dated March 2012 and June 2012. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. In addition, the Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the rating decision and the statement of the case. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In light of the foregoing, nothing more is required.

The notice requirements pertinent to the issue on appeal have been met, and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes available medical treatment, VA examination reports, and statements in support of the claim. The Veteran has not identified any additional records that should be obtained prior to appellate consideration. The evidence of record is sufficient for the Board's review. The Board finds there is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See U.S.C. § 5103A; 38 C.F.R. §3.159 (2017). 

When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. The Board notes the Veteran has not been afforded a VA examination for his claimed acquired psychiatric disorder to include PTSD and depression. Pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.

The Board finds that an examination in this instance is unnecessary as it relates to the Veteran's claim of service connection for PTSD. Specifically, there is no evidence establishing a verified stressor and no competent evidence of an actual PTSD diagnosis based on a verified stressor. Further, the evidence of record is against a finding that an in-service event occurred that would support a finding of in-service incurrence or aggravation. As such, the second McClendon requirement is not satisfied, and a VA psychiatric opinion is not required. See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (finding that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service). Otherwise, the VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159 (c)(4). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations, and to adjudicate these claims would not cause any prejudice to the appellant.

II. Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (2017). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). 

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease; or (b) when a chronic disease is not shown as such during service, by evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as a psychosis, 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, 1113; 38 C.F.R. §§ 3.307, 3.309 (2017).

In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

A. Tinnitus

Here, the Veteran contends that he has tinnitus attributable to noise exposure he incurred on active duty. Specifically, he worked refueling aircraft on the flight line including aircraft that still had the engine running at the time of refueling, and he asserts that this particular work caused his bilateral tinnitus. The Veteran's DD-Form 214 indicates that his military occupational specialty was a fuels craftsman, and the Board finds that he was exposed to noise during service. 

The Veteran has consistently maintained that he first noticed ringing in his ears in service and has continued to experience the same symptoms from that time to the present.  Review of the Veteran's service treatment records reflects that they are silent as to any complaints of, or treatment for, tinnitus. All of his periodic medical examination reports noted normal bilateral hearing without mention of tinnitus. Post-service treatment records reflect that the Veteran has complaints of tinnitus.

The Veteran was afforded a VA audiological examination in March 2012. The examiner noted that valid and reliable hearing test thresholds could not be obtained. The examiner further opined that that the claimed tinnitus was not caused by in-service noise exposure.  As rationale, the examiner stated that, as the Veteran works in a noisy environment and onset of tinnitus did not occur for many years following retirement from active service, it was less likely than not that his claimed tinnitus was related to service.

Medical treatment notes record the Veteran's complaints of ringing in the ears and symptoms of tinnitus. To that end, he has stated on multiple occasions that he was exposed to acoustic trauma and that his tinnitus began as a result of that exposure.

In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995).

As an initial matter, the Board notes that ringing in the ears is the type of symptom that is readily amenable to lay observation as it is subjective to the claimant.  Thus, the Veteran is competent to report his symptoms and their frequency. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). While there is no formal diagnosis of record, as tinnitus is a condition capable of lay observation and diagnosis, the Board acknowledges that his lay statements aptly establish a current disability. Several medical treatment records note the Veteran's continued reports detailing his tinnitus and his contention that he was exposed to loud sounds in service. Nothing in the record contradicts his statements, and his statements are generally consistent with the circumstances of his service.

Upon consideration of the above evidence, the Board finds that, resolving reasonable doubt in the Veteran's favor, a grant of service connection for tinnitus is warranted. The evidence shows that the Veteran has tinnitus which he has reported began during service, and that his symptoms have continued from that time to the present. With regard to the Veteran's complaints of in-service noise exposure, the Board finds credible his account of noise exposure in service as it is consistent with his military personnel records. 

The Board acknowledges that the March 2012 VA examiner stated that it was less likely than not that the Veteran's claimed tinnitus was caused by his active service as the Veteran did not have onset of tinnitus until after separation and, as he worked in a noisy environment. However, this medical opinion did not give due consideration to the Veteran's competent account of the onset of symptoms during service and their continuity thereafter, or to his credible and corroborated report of noise exposure during service. Thus, the Board finds that the March 2012 examination is less probative than the Veteran's statements in finding that his tinnitus is likely linked to active duty. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 

Based upon the Veteran's noise exposure in service and reports of continuous symptoms since service, the Board finds that tinnitus is a result of military service. With resolution of reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted.


B. PTSD

Establishing service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2017); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304 (f). 

With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV). The Board notes that the DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA has issued an interim final rule amending certain provisions in the regulations to reflect this update, including 38 C.F.R. § 4.125 (a). 79 Fed. Reg. 45093. The amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014, and do not apply to appeals already certified to the Board or pending before the Board. Id.  

Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, section 3.304(f) sets forth circumstances that are exceptions to this rule and allow a claimant's lay testimony, alone, to establish the occurrence of the alleged stressor.

In the first circumstance, if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided the stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor 38 C.F.R. § 3.304(f)(1). 

In the second circumstance, if the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. § 3.304(f)(2).

In the third circumstance, 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 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. § 3.304(f)(3). For purposes of this relaxed evidentiary standard set forth in this subsection, "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.  

In the fourth circumstance, if the evidence establishes the Veteran was a 
prisoner-of-war (POW) under the provisions of section 3.1(y) of the regulations, and the claimed stressor is related to that POW experience, in the absence of clear and convincing evidence to the contrary, and provided the stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. § 3.304(f)(4). 

If one of the above exceptions does not apply, then the veteran's statements alone will not be sufficient to establish an in-service stressor, but must be corroborated by credible supporting evidence. Dizoglio v. Brown, 9 Vet. App. 163 166 (1996). The available evidentiary sources for corroboration of a claimed stressor are not limited to service records (as required prior to the adoption of 38 C.F.R. § 3.304 (f)), but may also include other sources of evidence. Corroboration of every detail of the stressor is not required. Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). Moreover, a veteran's actual presence during the stressor event need not be specifically corroborated if the evidence shows that he was assigned to and stationed with a unit that was present when a reported event that has otherwise been verified occurred; such evidence strongly suggests actual exposure to the stressor event. Id. In general, with the exception of stressors based on personal assault, "after-the-fact medical nexus evidence," such as a VA examiner's finding that a claimant's PTSD was caused by the alleged in-service stressor, cannot by itself serve as credible supporting evidence of the claimed in-service stressor.

In this case, the Veteran does not assert, and there is no evidence otherwise showing, that he engaged in combat with the enemy or was a prisoner of war. See VAOPGCPREC 12-99 (65 Fed. Reg. 6,257 (2000) (providing that in order to establish that a Veteran "engaged in combat with the enemy," it must be shown that the Veteran "personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality"). Further, service treatment and personnel records do not reflect any complaints or treatment for psychiatric problems during service.

The Board finds that service connection for PTSD cannot be granted. Here, the Veteran submitted numerous lay statements alleging that the long hours and stressful working environment during his deployment to Hanover, Massachusetts caused him feelings of paranoia and anger which, in turn, caused symptoms of PTSD. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran has not specified a stressor or any triggers resulting from this experience or stated that he had symptoms related to it. Significantly, neither the Veteran nor any of his attending physicians have concluded that his reported symptoms were related to his active air force deployment to Hanover, Massachusetts. Accordingly, the Veteran's psychiatric condition cannot be attributed to his active deployment. 

The medical evidence of record reflects that the Veteran had a positive PTSD screening in May 2011. The Board acknowledges the positive PTSD screening and subsequent VA treatment records indicating that the Veteran has a history of PTSD. However, these medical records do not include any other information regarding the Veteran's apparent PTSD diagnosis, to include identifying what stressor caused it. Thus, even assuming arguendo that the Veteran's medical records document a diagnosis of PTSD, there is no credible supporting evidence that any claimed in-service stressor actually occurred, nor is there medical evidence of a link between the Veteran's current symptomatology and any in-service stressor. Accordingly, service connection for PTSD must be denied. C.F.R. § 3.304 (f).

In addition to PTSD, as detailed above the Veteran has been diagnosed with a generalized anxiety disorder. The Board has considered whether service connection is warranted for this condition as well; however the evidence of record does not demonstrate a causal link between that diagnosis and the Veteran's military service. The Veteran's service treatment records are silent for complaints or treatment of any psychiatric symptoms, and there is no medical opinion linking the Veteran's current anxiety disorder to active military service. Therefore, the Board must deny entitlement to service connection for an acquired psychiatric disorder. 

Although the Veteran has stated that he has an acquired psychological disorder that is related to his military service, the Board finds that his contentions in this regard are not competent. While he is competent to report psychiatric symptoms and their onset, he is not competent to report whether those particular psychiatric symptoms amount to a psychiatric disability. See Washington, 19 Vet. App. 362, 368. Such a differentiation is not capable of lay observation, such as the presence of varicose veins or ringing in the ears; medical expertise is required, as it is a complex psychiatric determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, as the Veteran's assertions are not competent to establish that a current acquired psychiatric disorder had its onset in service, they are likewise of no probative value in supporting such a conclusion.

In reaching the conclusions above 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 claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for an acquired psychiatric disorder is denied.




____________________________________________
J. Schulman
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs