Citation Nr: 20021701 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-10 926 DATE: March 26, 2020 ORDER The application to reopen the previously denied claim for service connection for post-traumatic stress disorder (PTSD) is granted. Entitlement to service connection for PTSD is denied. Entitlement to service connection for depressive disorder, generalized anxiety disorder and alcohol use disorder is granted. The application to reopen the previously denied claim for service connection for a left knee condition is granted. Entitlement to service connection for a left knee condition is granted. Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for chronic obstructive respiratory disorder (COPD) is remanded. Entitlement to service connection for asthma is remanded. FINDINGS OF FACT 1. A November 2016 rating decision denied the Veteran’s claim for service connection for PTSD and a left knee condition. 2. The Veteran did not express an intent to appeal the November 2016 rating decision and new and material evidence was not added to the record within one year of the decision. Accordingly, the decision is final. 3. The Veteran has submitted new and material evidence in support of his claims for service connection for PTSD and a left knee condition. 4. An in-service stressor sufficient to cause the Veteran’s PTSD has not been verified. 5. The Veteran’s diagnosed mental conditions of specified depressive disorder, generalized anxiety disorder and alcohol use disorder are related to his active service. 6. The Veteran’s left knee condition is related to his active service. 7. The Veteran currently does not have bilateral hearing loss to an extent recognized as a disability for VA purposes. CONCLUSIONS OF LAW 1. New and material evidence has been submitted to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 3. The criteria for service connection depressive disorder, generalized anxiety disorder and alcohol use disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. New and material evidence has been submitted to reopen the claim of entitlement to service connection for a left knee condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for a left knee condition are met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385, 4.85. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1972 to March 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran’s Contentions The Veteran contends that his mental and physical conditions are related to service. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id.; Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Generally, the credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claims for service connection for PTSD and a left knee condition were denied in a November 2016 rating decision on the grounds that the Veteran’s stressor could not be verified and there was no evidence of a link between the claimed conditions and service. The evidence considered at the time of the November 2016 rating decision included the Veteran’s service treatment records, VA treatment records, private treatment records and lay statements. Since the November 2016 rating decision, the Veteran has submitted a private Disability Benefits Questionnaire (DBQ) for his PTSD and a private evaluation of his left knee condition, and updated VA treatment records have been added to the file. This evidence is new because it was not previously submitted. The evidence is also material because it relates to the unestablished elements of whether the Veteran’s conditions are related to service. Specifically, the private evaluations submitted by the Veteran relate his conditions to service. Based on the new evidence, the Board finds a reasonable possibility that the Veteran may substantiate his claim for service connection for PTSD and a left knee condition. Accordingly, the requirements of 38 C.F.R. § 3.156(a) have been met and the claims for service connection for PTSD and a left knee condition are reopened. 38 C.F.R. §§ 20.302(b)(1), 20.1103. Service Connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Additionally, service connection for PTSD requires medical evidence establishing diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred and medical evidence establishing a link between current symptomology and the in-service stressor. 38 C.F.R. § 3.304(f). Service connection may also be granted where a disability is proximately due to or the result of an already service-connected disability. 38 C.F.R. § 3.310. To establish secondary service connection for a disability there must be (1) a current disability (for which secondary service connection is sought); (2) an existing service-connected disability; and (3) evidence that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Anxiety, Depression and Alcohol Use Disorder The Veteran is able to establish diagnoses of depressive disorder and generalized anxiety disorder and thus is able to establish the first element for service connection as to these conditions. Specifically, the DBQ prepared by a private psychologist notes diagnoses of depressive disorder and generalized anxiety disorder. With respect to an in-service event, the Veteran alleges that, while serving as a boatswain’s mate on active duty, he witnessed other servicemembers being blown off the flight deck and was almost blown off himself. Military personnel records confirm the Veteran’s military occupational specialty as a boatswain’s mate. The Veteran is competent to report his in-service experiences and the Board finds his reports consistent with the place, type and circumstances of his duties as a boatswain’s mate. 38 C.F.R. § 3.303(a). The Veteran is thus able to establish the second element for service connection for depressive disorder and generalized anxiety disorder. Unlike evidence in support of claims for service connection for PTSD, it is not necessary to verify a specific stressor event to support service connection for other acquired psychiatric disorders. See 38 C.F.R. § 3.304(f). As to the nexus element, a private psychologist opined in September 2018 that the Veteran’s anxiety disorder was at least as likely a result of his trauma exposure and overlapped with his depression. Board finds the opinion of the private psychologist probative and entitled to weight. The opinion is based on the psychologist’s in-depth interview and testing of the Veteran and is supported by the Veteran’s competent and credible reports of his experiences and symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the opinion establishes the current disabilities of anxiety and depression and relates them to the Veteran’s credible reports of trauma in service, service connection is granted for depressive disorder and generalized anxiety disorder. The opinion from the private psychologist also establishes a diagnosis of alcohol use disorder and opines that it is a result of self-medication. Although direct service connection may not be granted for a substance abuse disorder, a veteran is not precluded from receiving compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301 (a); VAOPGCPREC 2-98; see Allen supra, at 448. As the evidence establishes that the Veteran’s alcohol use disorder is related to his depression and anxiety, service connection on a secondary basis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. PTSD The private psychologist and chiropractor diagnosed the veteran with PTSD. While the Veteran thus has a diagnosis of PTSD, the Veteran’s alleged stressor remains unverified. In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support a veteran's assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). The Court of Appeals for Veterans Claims has held that the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor." Dizoglio v. Brown, 9 Vet. App. 163 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). As the Veteran’s stressor remains unverified, he is unable to establish entitlement to service connection for PTSD pursuant to the requirements of 38 C.F.R. § 3.304(f). Accordingly, service connection for PTSD must be denied. In any event, the Board notes that all mental disorders, including PTSD, are rated based on the degree of occupational and social impairment resulting from the disorder. 38 C.F.R. § 4.130. Left Knee Condition VA treatment records reflect complaints of left knee pain. The September 2018 consultation and examination by the private chiropractor notes the Veteran’s report that he injured his left knee in service and has had continuing pain since then. The chiropractor noted patellar and lateral instability and diagnosed the Veteran with chronic degenerative joint disease with lateral instability. The Board finds that the evidence supports a finding that the Veteran’s left knee condition began in service. The Veteran is competent to report what he has experienced through his senses, and the Board has no reason to question the credibility of his report that he injured his left knee in service and has continuing pain. Affording the Veteran the benefit of the doubt, the Board finds that he has been experiencing symptoms of knee pain, including instability, since service. Significantly, there is no probative evidence to the contrary. Thus, service connection for a left knee condition is granted. 38 C.F.R. § 3.303(a). Bilateral Hearing Loss The Veteran asserts that he has bilateral hearing loss due to his military service. Under 38 C.F.R. § 3.385, “impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (“relevant frequencies”) is 40 decibels or greater; or when the auditory thresholds for at least three of the relevant frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.” A November 2018 VA examination shows the Veteran’s pure tone thresholds were measured at 20, 20, 25, 20 and 15 at the relevant frequencies, for an average threshold of 20 decibels in the right ear, and at 15, 10, 20, 20 and 15 at the relevant frequencies in the left ear, with an average of 16 decibels. Speech recognition scores using the Maryland CNC test were 100 percent for both ears. The only other audio testing in the claims file is in the September 2018 report from the private chiropractor, who reported 20 percent hearing loss in the right ear and 30 percent hearing loss in the left ear based on her testing. The chiropractor does not indicate whether the Maryland CNC test was performed and does not provide any results from an audiogram. A current disability is a threshold issue for service connection. See 38 C.F.R. § 3.385; Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (finding that the VA's threshold requirement for hearing loss disability for VA purposes is valid). Without a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran is competent to comment on his difficulty hearing. However, the diagnosis of a hearing loss disability for VA purposes is not something that can be determined by lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis). A determination of whether a veteran has hearing loss for VA disability purposes requires clinical testing and training to make the appropriate interpretations and conclusions about what the testing demonstrates in conjunction with the symptoms reported. 38 C.F.R. § 4.85(a). Thus, the Veteran's implicit allegation via his claim that he has a bilateral hearing loss disability is not competent evidence and has little probative value in the determination of whether the Veteran has a bilateral hearing loss disability for VA purposes. Furthermore, the testing by the chiropractor does not meet the requirements of 38 C.F.R. § 4.85(a) that testing “must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.” Accordingly, the Board finds the results of the November 2018 VA examination probative and finds that the Veteran does not have bilateral hearing loss disability for VA purposes. The preponderance of the evidence is against the Veteran’s claim for service connection for bilateral hearing loss. See Brammer, 3 Vet. App. at 225. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection COPD and asthma The Veteran alleges that he had pneumonia in service that left him with a persistent cough that continues to the present. Service treatment records note complaints of a cough in July 1973 and a report by the Veteran that he previously had pneumonia while on active duty. The private consultation and examination report prepared by a chiropractor in September 2018 notes that the Veteran was treated for shortness of breath and coughing in service and concludes that he has COPD and asthma that is as likely as not related to his military service. The Veteran was afforded a VA examination for COPD and asthma in October 2018. The VA examiner noted diagnoses for asthma and COPD and indicated that they both had their onset in 1974, when the Veteran was on active duty. The VA examiner concluded that the Veteran’s COPD was resolved based on the lack of current evidence to support the continued diagnosis. No opinion was offered as to whether the Veteran’s asthma or COPD were related to service. The Board thus finds that VA examination inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate). The Board affords no probative weight to the bare conclusion of the chiropractor that the Veteran’s asthma and COPD were related to his military service. The chiropractor offered no rationale or basis for this opinion. However, based on the credible evidence of current disabilities of asthma and COPD and the inadequacy of the VA examination, the Board remands to obtain a medical opinion as to whether the Veteran has a respiratory condition related to service. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records and associate them with the claims file. 2. After completion of item 1, obtain a medical opinion from an appropriate VA clinician regarding the nature and etiology of any respiratory condition. The entire claims file and this REMAND should be made available to and be reviewed by the examiner in conjunction with this request. Following a review of the claims file, the examiner should respond to the following: (a.) Please identify all current respiratory conditions by diagnosis. For VA purposes, “current” means occurring at any time during the pendency of the claim, or from September 28, 2018 onward. (b.) For each condition identified in part (a), please indicate whether it is at least as likely as not (50 percent probability or more) that the condition had its onset in, was caused by, or is otherwise related to service. Please note that the Veteran is competent to report symptoms, treatment and injuries and that his reports must be considered in formulating the requested opinion. For any opinion rendered, please provide a complete rationale. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so (e.g. lack of sufficient information/evidence, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, Associate Counsel 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.