Citation Nr: 19131663 Decision Date: 04/23/19 Archive Date: 04/23/19 DOCKET NO. 12-18 378 DATE: April 23, 2019 ORDER Entitlement to service connection for calluses on the bottom of the right and left foot is denied. Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD is denied. Entitlement to service connection for a low back disorder is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s calluses did not onset in service nor are they related to service. 2. The Veteran’s acquired psychiatric disorder was not shown in service nor is it related to service. 3. The Veteran’s back disorder is not shown in service, nor is it related to service. 4. At his most recent VA examination of record, the Veteran’s hearing loss in both ears was characterized by Level I; at no point has his hearing loss been characterized by worse than Level III in each ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for calluses on the bottom of the right and left foot have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309, 3.385. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309, 4.125. 3. The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309. 4. The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to August 1979, with additional service in the National Guard from 1980 to 1995. A hearing was held by the undersigned Veterans’ Law Judge in October 2018. A transcript of this hearing is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for calluses on the bottom of the right and left foot and for a low back disorder The Veteran asserts that his right and left foot calluses onset in service. At his Board hearing, the Veteran also expressed his belief that his low back disorder is related to the heavy lifting he performed during his National Guard service. However, service connection for these disorders is not warranted, based on the evidence of record. First, the Veteran’s service treatment records do not reflect the appearance of either calluses or a chronic low back disorder, in service. The Veteran, at various times, claims that he developed calluses in service due to wearing wet shoes for extended periods, and by walking on concrete. Unfortunately, neither cause is reflected in the Veteran’s service records. As for his low back claim, the service records show one record of treatment for back pain in service, dated June 1974. This muscle strain appears to have resolved in service. At his February 2016 hearing, the Veteran recalled an incident during in which he was riding on the cab of a truck and the truck crashed into a ditch. If he was injured in this incident, that injury appears to have resolved as well. Indeed, the Veteran’s January 1979 examination report upon separation from active service does not reflect a chronic foot or low back disorder. Finally, the Veteran, in his July 1992 exam for the Georgia Army National Guard, stated that he had foot trouble, but explicitly denied back trouble. The rest of his available National Guard examination reports do not show foot or back trouble. Thus, there is no documentation of a foot or low back disorder during active service. In fact, the first clinical indication of calluses post-service is a November 2003 record. The first indication of a low back disorder is a March 2010 complaint of chronic low back pain. A follow-up April 2013 X-ray shows degenerative disc disease with facet arthropathy. The Veteran states that his calluses and his low back disorder were both incurred in service. However, the Board cannot accept these claims on their face, due to several inconsistencies with the evidence of record. As an initial matter, the Veteran admitted at his October 2018 hearing that it was “hard to say” how soon after service he received treatment for the disorders on appeal. The Veteran, in a March 2011 Notice of Disagreement, asserts that his calluses were incurred by walking on concrete. In a March 2011 statement, the Veteran states that the calluses onset in service, but that he cannot say anything specific about the onset of his calluses. Finally, he states in his October 2018 hearing testimony that he that he developed calluses from his boots and socks getting wet in service. It is difficult to infer a continuous timeline from these claims. The Veteran’s statements as to his low back disorder do not show continuity either. The Veteran stated to his April 2013 VA examiner that his back disorder has been present since service. However, while he mentions his calluses in November 2003 treatment, he does not mention a back disorder. It seems likely that if the Veteran was suffering from a back disorder at the time of the treatment in November 2003, he would have sought treatment for it along with the calluses. Accordingly, continuity of symptomatology is not shown by the medical evidence or by the Veteran’s statements. Next, service connection may be warranted if the evidence establishes a medical nexus between the Veteran’s current symptoms and active duty or service connected disabilities. In this case, there is no demonstrable medical nexus between the Veteran’s active duty and current diagnoses. While the Veteran ascribes his calluses to exposure to wetness and alternatively to walking on concrete floors, his medical treatment records do not indicate such a medical cause. Likewise, despite the Veteran’s reports of heavy lifting and a truck accident in service, there is no indication by a medical professional in treatment records that the Veteran’s low back disorder onset because of his duties in active service. Accordingly, further examinations and opinions would not assist the Veteran. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, at the VA examination in April 2013, the examiner opined that the Veteran’s back disorder was less likely than not related to his active duty service injury. In providing this opinion, the examiner noted that there were no persistent back symptoms in service and, as was mentioned above, subsequent evaluations in service were negative for any back pathology. As a result, the medical and substantive evidence of record shows that it is less likely that the Veteran’s current foot calluses and back disorders are related to service. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD The Veteran is seeking service connection for an acquired psychiatric disorder. Specifically, he has been diagnosed with PTSD and major depressive disorder. The Board determines that VA should consider these claims as one for any psychiatric disability that may reasonably be encompassed by the evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, this decision separately addresses entitlement to service connection for PTSD and for another psychiatric disorder, The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board determines that service connection is not warranted for a psychiatric disorder to include PTSD because the record contains no evidence that a psychiatric disorder was acquired in service. PTSD To establish service connection for PTSD, the evidence of record must include a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). Lay testimony may be sufficient to corroborate an in-service stressor if the stressor is related to fear of hostile military or terrorist activity. Id. The Board determines that service connection is not warranted for PTSD. As an initial matter, there are competing reports as to whether a current disability of PTSD exists. A January 2015 note describes a positive PTSD screen, obtained in response to asking the Veteran several standardized questions. Given the date of the screen, the Board assumes that the diagnosis complies with the DSM-V manual. On the other hand, in an April 2015 provider evaluation report, a staff psychiatrist mentions having reviewed the results of a PTSD screen, personally evaluating the Veteran, and declining to diagnose him with PTSD. Given the presence of PTSD, combined with the Veteran’s symptoms including nightmares, the Board will concede a current disability. However, the Veteran’s service treatment records, including his January 1979 separation examination report and his National Guard examination reports, do not reflect treatment for PTSD during active duty. More importantly, the Veteran’s claimed stressor cannot be corroborated. The Veteran initially identified four stressors that resulted in his PTSD: (1) not being allowed to go on sick call during service; (2) being woken up by his drill instructor at 1:00am; (3) an E-6 trying to court-martial the Veteran for not giving a civilian military food; and 4) a parachute accident in which two individuals were killed. Ultimately, at his October 2018 hearing, the Veteran clarified his stressor was the explosion of a nearby M-109 gun, resulting in several deaths. Lay testimony alone is not sufficient to establish that a stressor occurred; it must be corroborated by “credible supporting evidence.” See Cohen v. Brown, 10 Vet. App. 128, 142 (1997). The Veteran admits in October 2018 hearing testimony that this event occurred during a period of active duty for training. Thus, he is not a “combat veteran” under § 3.304(f)(2), nor could he have experienced fear of hostile military activity under § 3.304(f)(3). Finally, the Veteran does not assert that he was a prisoner of war under §3.304(f)(4). After-the-fact medical evidence, such as the PTSD evaluation of record, cannot be used to corroborate a claimed stressor. See Moreau v. Brown, 9 Vet. App. 389 (1996). As such, neither the Veteran’s own testimony, nor any medical evidence obtained after service, is sufficient to corroborate his claimed stressors. Despite following all required procedures to assist the Veteran in corroborating his various claimed stressors, VA was not able to corroborate any of these stressors. A memorandum dated July 2016 included a formal finding of the lack of sufficient information required to corroborate the Veteran’s claimed stressors. Moreover, at his October 2018 hearing, the Veteran was unable to pinpoint a date for any of these occurrences. Even after being encouraged to find independent evidence of the event via the Internet, the Veteran was unable to procure evidence independently corroborating his stressor. Accordingly, the preponderance of the evidence is against the claim because of a lack of a corroborated in-service stressor. Accordingly, the Veteran’s claim for PTSD must be denied due to the lack of a corroborated in-service stressor. Acquired Psychiatric Disorders Other Than PTSD As for whether service connection is warranted for depression, the Board determines that service connection is also not warranted on this basis. While the Board notes that the Veteran has a current diagnosis of record for major depressive disorder, this disorder was not shown in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). First, the Veteran’s in-service records do not reflect treatment for depression in service or within a year after separation in January 1979 or from any period of active duty. While the Veteran points to witnessing the explosion of a Howitzer due to user error, a parachute accident, being harassed by other servicemembers and not being allowed to go on sick call, a drill instructor who deprived trainees of sleep, and a court-martial, these accounts are not reflected in the Veteran’s available service records. In fact, several reports from the Veteran’s National Guard service, including one dated August 1987, describe the Veteran as an exemplary worker. At his October 2018 hearing, the Veteran was unable to pinpoint a date for any of these occurrences. Indeed, the first indication of psychiatric symptoms of record is a positive depression screen in September 2011, following at least one negative depression screen. In addition, the Veteran does not assert, nor does the evidence indicate, symptoms of depression since service. Accordingly, service connection is not warranted based on continuity of symptomatology of either the medical evidence or the Veteran’s statements. Moreover, the Board finds that the Veteran has not specifically asserted an etiological link between his depression and his time in service, and the Board cannot identify one. While he asserts symptoms of depression after returning, the Veteran does not explicitly assert a link between the two. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Accordingly, his symptoms cannot be associated with his active duty. In arriving at these conclusions, the Board has also considered the statements made by the Veteran relating the disorders on appeal to his active service. Specifically, the Board notes the Veteran’s contentions that walking in wet boots and socks for two days caused his calluses, and that lifting heavy rounds of ammunition caused a low back disorder. The United States Court of Appeals for the Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of psychiatric, orthopedic, or skin disorders. See Jandreau, 492 F.3d at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the Veteran’s contentions linking his disorders to service are found to lack competency. Considering the above discussion, the Board concludes that the weight of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. The appeal is denied. Increased Rating 3. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran disagrees with the rating he has received for bilateral hearing loss, which was assigned under 38 C.F.R. § 4.85, DC 6100 in a rating decision dated January 2011 and sent in February 2011. Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through level XI, representing profound deafness. See 38 C.F.R. § 4.85. An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of §4.86 Based on the evidence of record, a compensable rating is not warranted. Specifically, at a VA examination in November 2010, the Veteran reported hearing loss. Upon examination, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 20 25 25 21.25 LEFT 15 25 35 50 31.25 Speech audiometry revealed speech recognition ability of 80 percent in each ear. An exceptional pattern of hearing impairment has not been shown. Based on these values, the Veteran demonstrates Level III hearing loss in both ears. See 38 C.F.R. § 4.85, Table VI. Next, before a VA examination in March 2014, the Veteran asserted that it was difficult ot hear coworkers at work. At the examination, he reported recreational noise exposure from loud sporting events, music, and recreational firearms. Upon examination, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 30 30 30 28 LEFT 20 30 40 45 34 The use of word recognition scores was deemed not appropriate because of language difficulties, cognitive problems, inconsistent word recognition scores etc., that make combined use of puretone average and word recognition scores inappropriate. Moreover, an exceptional pattern of hearing impairment has not been shown. Based on the available values, therefore, the Veteran demonstrates Level I hearing loss in both ears. See 38 C.F.R. § 4.85, Table VIa. Finally, at his most recent hearing VA examination in August 2016, the Veteran’s thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 30 30 35 31 LEFT 30 35 45 50 40 The examiner again found that the use of word recognition scores was deemed not appropriate because of language difficulties, cognitive problems, inconsistent word recognition scores etc., that make combined use of puretone average and word recognition scores inappropriate. Nevertheless, the Board determines that there is little benefit from providing another VA examination, give that the issues that impeded the prior examination would be the same at any future exam. Moreover, as the tonal thresholds are substantially similar throughout all the prior examinations, it may be assumed that the speech recognition scores would not have significantly deviated from the 2010 examination.   Finally, even when applying the tables for exceptional pattern of hearing impairment, the Veteran still only demonstrates Level I hearing loss in both ears. See 38 C.F.R. § 4.85, Table VIa. Applying the results of each examination to Table VII, a noncompensable rating is for application throughout the appeal period. Therefore, a compensable rating is not warranted. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel