Citation Nr: 20004200 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 18-10 074 DATE: January 16, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection bilateral hearing loss disability, and to that extent only, the appeal is allowed. Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. Entitlement to service connection for a bilateral hearing loss disability was denied in a September 2012 rating decision; the Veteran did not appeal this decision and no new and material evidence was submitted within the one-year appeal period. 2. Evidence received subsequent to the expiration of the appeal period for entitlement to service connection for a bilateral hearing loss disability includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. 3. The most probative evidence of record does not demonstrate that the Veteran’s bilateral hearing loss disability began during or is etiologically related to his active duty service or that it manifested to a compensable degree within one year of separation from active service. 4. The most probative evidence of record does not demonstrate that the Veteran has a psychiatric disorder, to include PTSD, which began during or is etiologically related to his active duty service or that a psychiatric disorder manifested to a compensable degree within one year of separation from active service. CONCLUSIONS OF LAW 1. The September 2012 rating decision which denied entitlement to service connection for a bilateral hearing loss disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for entitlement to service connection for a bilateral hearing loss disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 4. The criteria for entitlement to service connection for a psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1949 to October 1952, to include verified service in Korea. The Veteran and his spouse testified at an October 2019 videoconference hearing before the undersigned Veterans Law Judge. A transcript of that Board hearing is associated with the evidence of record. In March 2019, the Board advanced the Veteran’s claim on the docket due to advanced age. See 38 C.F.R. § 20.902(c). Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral hearing loss disability Generally, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The Veteran’s claim for entitlement to service connection for a bilateral hearing loss disability was denied in a September 2012 rating decision. The Veteran’s claim was denied because the evidence did not demonstrate a nexus between his active duty service and his bilateral hearing loss disability. He did not appeal the September 2012 rating decision or submit new and material evidence within the appeal period; therefore, this decision is final. Evidence received subsequent to the prior denial consists of, in pertinent part, the Veteran’s testimony at his October 2019 hearing before the Board regarding a detailed description of his exposure to acoustic trauma during service. The Board finds this evidence is new because it was not before adjudicators at the time of the prior denial. The Board also finds that the evidence is material because it raises a reasonable possibility of substantiating the Veteran’s claim, as it lends support to an element of service connection missing at the time of the prior denial. Therefore, the low threshold to reopen the Veteran’s claim has been met. See Shade, 24 Vet. App. at 118-21. 2. Entitlement to service connection for a bilateral hearing loss disability Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain disabilities, such as sensorineural hearing loss and psychiatric disorders, are presumed to have been incurred during service if found to manifest to a degree of at least 10 percent within one year of separating from active duty service. 38 C.F.R. §§ 3.307, 3.309. In the absence of a proof of present disability there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran is claiming entitlement to service connection for a bilateral hearing loss disability, as due to exposure to acoustic trauma during service. The evidence of record reflects the Veteran has a current bilateral hearing loss disability as defined by VA regulation. See 38 C.F.R. § 3.385. At his October 2019 videoconference hearing before the Board, the Veteran testified he was exposed to acoustic trauma during service from artillery fire and explosive shells. He also indicated he was an engineer during service, which involved blowing up/demolition of bridges, and was often in close proximity to the explosions. He testified that he did not use any hearing protection during service. The Veteran stated he did not receive a separation physical, despite the fact that the record contains an October 1952 exit examination report. He further indicated that following his active duty service he was not exposed to any traumatic noise that would have caused his hearing loss. The Veteran was unable to give a time frame as to when he began noticing his hearing loss; however, following questioning from his representative agreed that it was within a relatively short time span after separation from active duty, as he would often ask others to repeat themselves. The Veteran’s service personnel records reflect he received, among other decorations, a Bronze Star Medal and the Korean Service Medal with six campaign stars. The Board finds the Veteran’s statements regarding the acoustic trauma he was exposed to during service (arms fire, explosions) to be consistent with his duties and service; therefore, the Board acknowledges this exposure. See 38 U.S.C. § 1154(b). Accordingly, the Board will consider whether there is a nexus between the Veteran’s in-service acoustic trauma and his bilateral hearing loss disability. The Veteran’s service treatment records do not contain any complaints of or treatment for any hearing loss or ear disability. At his entrance and separation examinations, his hearing was 15/15 on voice whisper tests. In his October 2011 claim for compensation, he indicated his hearing loss began in 1990, followed by a question mark, suggesting he was unsure as to the date of onset. In an October 2011 statement, the Veteran indicated his VA doctor suggested he see if he was eligible for disability compensation for his hearing loss. The Veteran attended a September 2012 VA examination and the examiner determined it was less likely than not (less than a 50 percent probability) that the Veteran’s hearing loss disability was related to his active duty service. The examiner reasoned the Veteran’s hearing was normal at entrance and separation, he reported his hearing loss began around approximately 1990. The examiner further reasoned the Veteran was first seen for healthcare treatment at the VA in 1999, approximately 47 years following his active duty service, and that his doctor reported he had “no acute complaints,” and no hearing loss or tinnitus were mentioned. The Veteran’s first hearing consultation was in 2004, approximately 52 years following active service. Based on the foregoing information, the examiner’s opinion was negative. The Board recognizes that the Veteran is competent to report symptoms of hearing loss that he experiences, as this requires only personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a lay person, he is not competent to determine the etiology of any hearing loss disability, as this required specialized medical education, experience, and training, which he has not demonstrated. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (holding that where the determinative issue is one of medical causation or diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The Veteran’s statements, while considered by the Board and the VA examiner, are insufficient by themselves to establish a nexus. The Board recognizes that the Veteran claimed at his hearing before the Board that he believed he experienced hearing loss symptoms a relatively short time after his active duty service. However, in his claim for compensation and at his VA examination he indicated his hearing loss may have begun in the 1990s. The Board affords more weight to the Veteran’s statements in his claim for compensation and at his VA examination, as those statements were made prior to the initial denial of his claim. Based on the foregoing, the Board finds that service connection for a bilateral hearing loss disability must be denied. The VA examiner provided a negative opinion with a supporting rationale, and there are no conflicting competent medical opinions of record. The Board acknowledges that in November 2019 the Veteran submitted a statement along with the most recent results of a VA audiological test; in his statement, he indicated that he wished for this evidence to be considered and that he was concerned that speech recognition testing was not performed at this audiological examination. The recent VA audiological testing merely confirms that the Veteran has a “profound” bilateral hearing loss disability; the fact alone that the Veteran’s hearing loss is considered “profound” does not support a finding of a nexus, but rather, merely is indicative of the current level of disability. Moreover, this audiology report is not accompanied by any opinion regarding the etiology of the Veteran’s hearing loss disability. Accordingly, it is not probative evidence in support of his claim for service connection. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, it does not apply. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 3. Entitlement to service connection for a psychiatric disorder, to include PTSD The Veteran is claiming entitlement to service connection for PTSD, as due to experiences while serving in Korea. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a nexus between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The Veteran’s personnel records reflect the Veteran was a combat engineer; he received, among other decorations, a Bronze Star Medal and the Korean Service Medal with six campaign stars. The Veteran’s service treatment records do not contain any complaints of or treatment for any psychiatric symptoms. His treatment records reflect he accidentally discharged his own weapon in September 1950, injuring his left foot; the report noted that this was an accident in connection with the use of his own instrumentality of war and that this was not due to the Veteran’s willful misconduct. In January 1951, he experienced a wound to his chin due to explosive projectile shells from weapons, and his records note that this was the direct result of “action against or by an organized enemy.” The Veteran established healthcare with the VA system in December 1999 for a physical examination and presented with no acute complaints. VA medical records contain negative depression screens in May 2002, July 2003, February 2004, December 2004, December 2005, March 2007, March 2008, July 2009, October 2010, December 2011, March 2013, June 2014, and most recently in June 2015. He specifically denied trouble falling or staying asleep during most of those screens and never offered concerns regarding insomnia, nightmares, or sleep difficulties. VA medical records also contain negative PTSD screens in December 2004, December 2005, July 2009, and October 2010; at all these screens the Veteran specifically denied nightmares or flashbacks. There are no positive depression or PTSD screens of record. In an April 2015 statement, the Veteran’s spouse indicated she has witnessed the Veteran’s sleep disturbance for a number of years almost nightly. She reported he experienced dreams almost nightly of moderate to violent intensity. Sometimes he would start nervously jerking and other times he would yell out loudly. At times, he may start flailing his arms around, punching or pounding his fists into the bed or headboard, or kicking his feet. She stated the Veteran usually did not remember what he was dreaming about but that it was always negative and violent. She further indicated he had become more impatient recently (in the past few years) and angry over unimportant things. At an April 2015 VA primary care appointment, the Veteran reported a problem with violent dreams since he served in Korea; he stated they have been getting worse and he has struck out at his wife (but has not hit her) in his sleep. The Veteran was referred to a VA mental health appointment that same month to address his sleep difficulties. The examiner noted that the Veteran attended the appointment with his spouse, who wrote on a piece of paper everything that had been happening to her husband while sleeping. She informed the examiner that when her husband had bad dreams he would act out; this occurred nightly (as well as during naps) and she stated his dreams were from moderate to violent in intensity. The examiner asked the Veteran’s spouse to explain further what she meant and she stated he has jerked in his sleep, yelled loudly, kicked, flailed his arms, and even punched his fists into the headboard and bed. She also indicated that sometimes the Veteran mumbles in his sleep and carries on a conversation. Following this mental health consultation, the examiner diagnosed PTSD. In a June 2015 statement from the Veteran, he indicated that while serving in Korea there were many nights in camp he heard incoming artillery and that he was once struck in the mouth. He reported that one night while performing his duties alone “something happened,” although he was unsure what, and he found himself being picked up by fellow soldiers and brought to the military hospital for foot injuries. The Veteran attended a September 2015 VA examination and the examiner found he did not have a diagnosis of PTSD or any other psychiatric disorder. At the examination, the Veteran reported he had been married for 60 years and had a good relationship with his wife, children, and grandchildren. He and his wife enjoyed visiting friends and family frequently. He stated he enjoyed many activities, including watching television, to include a comedy show about a mobile medic unit in Korea. He stated this program about Korea did not bother him and he did not endorse any avoidance behaviors. Regarding military history, the Veteran indicated he saw very little combat and was injured twice (superficial scar on his chin and bullet wound to his foot). When asked how his experiences in the military affected his occupational functioning, he stated he occasionally experienced foot problems. The examiner found no impairment in social or occupational functioning evidence during the interview secondary to symptoms associated with PTSD. The Veteran reported getting up as many as three times each night to use the restroom (history of prostate problems) and that he would easily fall back asleep in five to twenty minutes. He reported he was awakened some nights by nightmares but could not remember the content of these nightmares. He stated the nightmares began eight years prior and stated he did not wish to receive medication for this. The Veteran reported in-service stressors as being wounded in the foot and chin. He stated that while he was performing guard duty he was shot by the enemy in the foot and treated in Japan for a month before returning to Korea. He also reported being superficially injured by a mortar fragment to his chin area, resulting in a scar. The examiner determined these claimed stressors met the PTSD Criterion A, due to directly experiencing traumatic events, causing exposure to actual or threatened death or serious injury. However, the examiner found that the Veteran did not meet the additional clinical criteria for a diagnosis of combat or military related PTSD, noting insufficient symptoms of reenactment, avoidance, negative alterations in cognition/mood, and hyperarousal. At his October 2019 hearing before the Board, when asked if there were events during service which caused him emotional stress, the Veteran indicated that there were many situations. He stated he was injured by shrapnel in his buttocks and chin. When asked if this situation caused him to fear for his life, the Veteran responded, “yes, I believe so,” and when asked if the constant threat of being shot at caused him emotional distress he replied, “not a lot, but some.” The Veteran described an incident where he was in a foxhole and Korean soldiers passed him, causing him to fear for his life, and that he felt lucky they continued on their way. He also described hearing the sound of artillery while sleeping in his tent. When asked about his current symptoms, the Veteran indicated his wife told him he becomes violent during his sleep, which he attributed to thinking about his experiences in the war or seeing a trigger on television. The Veteran’s wife described his disturbed sleep as “traumatic episodes” where he would mumble, yell, and kick in his sleep. She testified this had occurred nightly for “a long time.” When the Veteran was asked how long these episodes had been going on, he stated that it had been a long time, but he hadn’t really thought about it until recently when the episodes became more violent. She stated she knew the Veteran experienced combat, was injured during service, and that she felt his current symptoms were related to service. The Board recognizes that the Veteran is competent to report symptoms he experiences, as this requires only personal knowledge. See Layno, 6 Vet. App. at 470. Further, his spouse is competent to report symptoms she has witnessed. See id. However, as lay persons, neither the Veteran nor his spouse are competent to diagnose a psychiatric disorder or relate any psychiatric disorder to the Veteran’s active duty service, as this required specialized medical education, experience, and training, which they have not demonstrated. See Jandreau, 492 F.3d at 1376-77; see also Jones, 12 Vet. App. at 385. Based on the foregoing, the Board finds absent a diagnosis of PTSD or any other psychiatric disorder, service connection must be denied as a matter of law. See 38 C.F.R. §§ 3.303, 3.304(f), 4.125(a); see also Brammer, 3 Vet. App. at 225 (1992); McClain, 21 Vet. App. at 321. The Board finds the September 2015 VA examiner’s opinion to be probative evidence against the Veteran’s claim, as it contains a rationale for the conclusion reached. The Board recognizes that an April 2015 VA treatment record contains a diagnosis of PTSD. However, the Board notes that this diagnosis was based on a visit with the Veteran for the purpose of determining treatment. The Board finds the September 2015 VA examination to be more probative than the April 2015 diagnosis, as this examination report was based on a full review of the evidence of record, as opposed to the April 2015 diagnosis which was based on visit for treatment purposes and did not include consideration of the Veteran’s medical history. The Board recognizes that the Veteran and his spouse have taken issue with the VA examination. In his October 2015 Notice of Disagreement, the Veteran stated he felt he had not been adequately examined; specifically, he stated the dreams he experienced were very disturbing and that the examiner did not ask him anything about his dreams or interrupted sleep. Similarly, in the October 2019 hearing before the Board, the Veteran’s spouse testified that she felt he had not been properly evaluated at the September 2015 VA examination and that the examiner did not adequately consider the level of severity of the Veteran’s condition or his combat experience. The Board has considered these contentions, reviewed all the evidence of record, to include the VA examination report, and does not find any inadequacies. The September 2015 VA examiner reviewed the evidence of record, to include the April 2015 VA mental health appointment, at which the Veteran’s spouse described his sleep impairment in detail. Further, the VA examination report contains a thorough recitation of the Veteran’s past and current symptoms, as well as consideration of the Veteran’s combat experience. The Board notes that the examiner’s opinion that the Veteran does not have PTSD is not based on a finding of no combat experience; rather, the examiner acknowledged that the Veteran’s claimed stressors were sufficient to support a PTSD stressor, however, his clinical presentation was not congruent with a diagnosis of PTSD. The Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against the Veteran’s claim, and therefore, it does not apply. See 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 56. The Board is grateful for the Veteran’s honorable service to our country and is sympathetic to the fact that he has medical conditions. While the Board regrets a more favorable outcome could not be reached, it must apply the law as it exists. See Owings v. Brown, 8 Vet. App. 17, 23 (1995). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jessica L. O'Connell The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.