Citation Nr: 20021768 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-13 164 DATE: March 26, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), anxiety disability and depression, is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for arthritis due to trauma with joint pain is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right elbow disability is denied. Entitlement to service connection for a left elbow disability is denied. Entitlement to service connection for a right wrist disability is denied. Entitlement to service connection for a left wrist disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right ankle disability is denied. FINDINGS OF FACT 1. Resolving all doubt in his favor, the Veteran's acquired psychiatric disorder, diagnosed as PTSD and anxiety disability with depression, is related to his military service. 2. The Veteran does not have a hearing loss disability for VA purposes. 3. The Veteran does not have arthritis due to trauma with joint pain. 4. The Veteran has not had a left shoulder disability at any point during the appeal period. 5. The Veteran has not had a disability of either elbow any point during the appeal period. 6. The Veteran has not had a disability of either wrist any point during the appeal period. 7. The Veteran has not had a disability of the ankles during any time from contemporaneous to when he filed his claim to the present. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, including PTSD with anxiety and depression have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. 3. The criteria for service connection for arthritis due to trauma with joint pain have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right elbow disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a left elbow disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for a right wrist disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 8. The criteria for service connection for a left wrist disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 9. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 10. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2001 to June 2016. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 2018 rating decision, which denied the Veteran's claims. He perfected a timely appeal to that rating decision. In a substantive appeal (VA Form 9), dated May 1, 2019, the Veteran indicated that he was only appealing the issues reflected above. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). "To establish a right to compensation for a present disability, a Veteran 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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection for certain chronic diseases, including arthritis and an organic disease of the nervous system like sensorineural hearing loss, may also 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; 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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for a current disability is satisfied if the disability is shown at any time subsequent to filing the claim, even if not shown currently. McLain v. Nicholson, 21 Vet. App. 319 (2007). Service connection for PTSD requires that the record show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a); (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor. 38 C.F.R. § 3.304 (f) (2018). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM). Id. For cases certified to the Board after August 4, 2014, a diagnosis of PTSD must be in accordance with the DSM-5. 38 C.F.R. § 4.125 (2018). 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 that the claimed 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 U.S.C. § 1154 (b) (2012); 38 C.F.R. § 3.304 (f) (2018). The evidence needed to establish the occurrence of a claimed in-service stressor is typically dependent upon whether a veteran engaged in combat with the enemy, as well as whether the claimed in-service stressor is related to such combat; or, if not, whether there is objective evidence to verify the occurrence of the claimed stressor. See 38 C.F.R. § 3.304 (f); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see also 38 U.S.C. § 1154 (b). If a stressor claimed by a veteran is related to his or her fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that 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. 38 C.F.R. § 3.304 (f)(3). "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 addition to the above criteria, service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385 (2018), which provides that service connection for impaired hearing shall be established when hearing status meets certain pure tone and speech recognition criteria. Hearing loss status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater, the auditory thresholds for at least three of these frequencies 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 Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person 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), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id. see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety disorder The Veteran maintains that he suffers from a mental health disability that developed as a result of his service in Iraq. Considering the pertinent evidence, in light of the governing legal authority, and resolving reasonable doubt on certain elements of the claim in the Veteran’s favor, the Board finds that service connection for PTSD with anxiety and depression, due to his in-service TBIs, is warranted. As the record reflects that the Veteran is in receipt of the CIB and Bronze Star Medal with V Device, his reported stressors related to such combat service may be established by his testimony alone. The Board further acknowledges that the Veteran has a current medical diagnosis of PTSD based on his reported in-service stressors. See 38 C.F.R. § 3.304 (f)(3). It is noteworthy that during a post-deployment examination in July 2008, the Veteran reported anxiety and nightmares following a blast exposure in Iraq; he was diagnosed with adjustment disorder with anxiety. Moreover, following a DBQ examination for evaluation of residuals of TBI in May 2018, the examiner stated that it is more likely than not that the Veteran suffers from “blast type” traumatic brain injury that is service connected and manifests as PTSD, with symptoms of insomnia, intrusive dreams, memory problems, headaches and other neurobehavioral issues.” Having carefully considered the evidence of record, the Board finds that it is in favor of the Veteran's claim. Here, the Board finds that the Veteran's service personnel records along with the report of the DBQ examiner in May 2018 are sufficient to verify the stressors claimed by the Veteran, and to show that a nexus exists between the Veteran's in-service stressor (to include a fear of hostile military or terrorist activity) and his current diagnoses. It is clear from a review of his history that the Veteran was exposed to traumatic events while deployed in Iraq, to include those involving actual or threatened death or serious injury, or threat to the physical integrity of self or others. The most probative medical evidence from the DBQ examination for evaluation of residuals of TBI weighs in favor of the Veteran's claim. Further inquiry could be undertaken with a view towards development of the claim to obtain an additional medical opinion. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Therefore, resolving reasonable doubt in his favor, the evidence of record sufficiently relates the Veteran's diagnosis of PTSD with anxiety and depression to active service, and service connection is warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018), Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for bilateral hearing loss The Veteran is seeking service connection for bilateral hearing loss which he believes developed because of exposure to hazardous noise during service. A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving pure tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2018). 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, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. After careful review of the evidentiary record, the Board concludes that the Veteran does not have a hearing loss disability, for VA purposes, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). At a February 2019 DBQ audiological examination, pure tone thresholds at frequencies of 500, 1000, 2000, 3000, and 4000 Hz were 10, 20, 10, 20, and 30 dB in the right ear and 10, 15, 10, 20, and 35 dB at frequencies in the left ear. Speech recognition was 94 percent for each ear. In this regard, while the examiner reported a finding of sensorineural hearing loss for both ears, the audiometric thresholds are not commensurate with a "hearing loss" disability for VA purposes under38 C.F.R. § 3.385. There are no other audiological examinations of record that demonstrate a hearing loss disability of either ear. This weighs heavily against the claim. While the Veteran believes he currently has hearing loss disability for VA purposes, he is not competent to provide a diagnosis in this case. The issue is medically complex and requires specialized knowledge and experience. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating the need for supporting medical evidence in claim for rheumatic heart disease). There is no indication that the Veteran has the medical training to self-test his hearing for pure tone thresholds or Maryland CNC speech recognition results that would reveal hearing loss for VA purposes under 38 C.F.R. § 3.385. As such, the Board finds that the Veteran's assertion of hearing loss disability due to in-service noise exposure is not probative. Absent a currently diagnosed disability as defined by 38 C.F.R. § 3.385, service connection is not warranted. In summary, the evidence fails to establish that the Veteran has a hearing loss disability as defined in 38 C.F.R. § 3.385 for VA compensation purposes. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, service connection for hearing loss disability must be denied. 3. Entitlement to service connection for arthritis due to trauma with joint pain The Veteran contends that he has arthritis with associated joint pain which is attributable to his military service. The Veteran’s STRs reflect that during his 16 years on active duty, he was treated on many occasions for pain associated with his right shoulder, feet, back and knees; however, the STRs do not reflect any diagnosis of arthritis during active service. While the STRs show that the Veteran complained of muscle aches, with swollen and painful joints in May 2008, he was not diagnosed with arthritis. At his June 2016 separation examination, the Veteran’s complaints included joint pain in left foot, both knees and lower back. The separation examination did not report any finding of arthritis. Post-service records are silent for any findings or complaints of arthritis. DBQ examinations of the back, feet, knees and shoulders and arms, conducted in May 2018, all reported no documented findings of traumatic arthritis. A Gulf War General Medical DBQ examination in May 2018 noted that there were no diagnosed illnesses for which no etiology was established. The examiner reported that the physical examination was normal. In light of the foregoing, the Board finds that there is no competent medical or lay evidence that the Veteran has a current arthritis disability within the first post-service year or continuous symptoms since service or otherwise related to any inservice incident. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, service connection for arthritis is denied as the medical evidence fails to establish the Veteran has a current disability for which service connection may be granted. The Board has considered the Veteran's lay statements in support of his claim. In multiple statements, the Veteran related that he believed that he has arthritis which is related to his service. Although laypersons are competent to provide opinions on some medical issues, as to the specific issue in this case, diagnosing arthritis falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (laypersons not competent to diagnose cancer). As a layperson, the Veteran has not been shown to possess the medical expertise to diagnose arthritis, as it requires knowledge of the orthopedic and musculoskeletal system. The claims file does not contain any medical examinations diagnosing arthritis or linking his self-reported symptoms to his active service. In sum, there is no competent evidence, medical or otherwise, to support the Veteran's statements. Thus, as previously stated, the medical evidence of record is only against the Veteran's service connection claim. Thus, the Board finds that the claim for service connection for arthritis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Entitlement to service connection for a left shoulder disability The Veteran asserts that he has a left shoulder disability that developed as a result of active service. A review of his service treatment records reveals that there are no findings pertinent to the left shoulder during active service. In fact, the June 2016 separation examination report shows that clinical evaluation of the upper extremities was normal. The associated June 2016 report of medical history did not show any indication of a left shoulder disability. Following service, there are also no findings indicative of a current left shoulder disability. Although the Veteran was afforded a DBQ examination in May 2018 for shoulder and arm disabilities, the Veteran did not endorse left shoulder pain and examination of the left shoulder was completely normal; there was no diagnosis of a left shoulder disability. In this regard, there was no evidence of treatment for left shoulder disability in service, there is no evidence of chronic disability shown at separation from service, and no evidence of a nexus between an in-service injury or disease and any current left shoulder disability. In this regard, there is no persuasive medical evidence that indicates the Veteran has a current left shoulder disability. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. Without evidence of such disability during the pendency of the claim/appeal (see McClain, 21 Vet. App. at 321) there can be no valid claim of service connection. See 38 U.S.C. § 1110; Gilpin, 155 F.3d at 1353; Brammer, 3 Vet. App. at 225. While the Veteran is certainly capable of reporting he has had a left shoulder disability (see Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1377), his opinion is outweighed by the competent medical evidence. Simply stated, the Veteran's service treatment records (showing no chronic disability at separation from service) and post-service treatment records (showing no current disability) outweigh the Veteran's contentions. A basis upon which to grant the Veteran's service connection claim for left shoulder disability has not been established, therefore, the claim must be denied. As the preponderance of the evidence is against the service connection claim, the benefit-of-the-doubt doctrine is not helpful to the Veteran. See generally Gilbert, 1 Vet. App. at 49. 5. Entitlement to service connection for a right elbow disability 6. Entitlement to service connection for a left elbow disability 7. Entitlement to service connection for a right wrist disability 8. Entitlement to service connection for a left wrist disability 9. Entitlement to service connection for a right ankle disability 10. Entitlement to service connection for a left ankle disability The Veteran maintains that he suffers from disabilities involving his elbows, wrists and ankles as a result of injuries sustained during his period of active duty. After review of the evidentiary record, the Board finds that service connection is not warranted for a bilateral elbow disability, a bilateral wrist disability, or bilateral ankle disability. In this regard, the Board notes that the STRs do not include any mention of, complaints of, treatment for, or diagnosis of any problems involving the elbows, wrists or ankles. In addition, all available VA and non-VA treatment records are silent for a complain of, or treatment for, any elbow, wrists or ankle symptoms. The Veteran has not submitted any competent evidence supporting the claim that he has a current bilateral elbow disability, a bilateral wrist disability, or bilateral ankle disabilities. Moreover, following a DBQ Gulf War general medical examination in May 2018, the examiner indicated that the only conditions that had been reported were back, right arm, foot problems, and knees. He stated that a physical examination was normal, except for the listed disabilities; no symptoms, abnormal findings or complaints regarding the elbows, wrists or ankles were noted. The threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., a bilateral elbow disability, a bilateral wrist disability, or bilateral ankle disability. The record does not include any such evidence. Notably, the treatment records associated with the record do not show any diagnosis or treatment for any disability of the elbow, wrists or ankles. The Veteran's contentions do not support a finding that he has had persistent or recurrent symptoms of such disabilities. Accordingly, there is no valid claim of service connection for a bilateral elbow disability, a bilateral wrist disability, or bilateral ankle disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In so finding, the Board notes that the Veteran is considered competent to describe his symptoms, but he is not competent to render or provide a current diagnosis of a chronic orthopedic disability which requires knowledge of the musculoskeletal system and the effect of internal and external processes on the musculoskeletal system. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The evidence does not show that the Veteran has a bilateral elbow disability, a bilateral wrist disability, or bilateral ankle disability. Absent a current disability, service connection is not warranted. Even in consideration of the Veteran's statements, he has not specifically alleged a current disability, but instead has merely made arguments regarding the occurrence of an in-service incident, IED explosions, which caused him to develop elbow, wrist and ankle problems. Such does not amount to a report of a contemporaneous disability as contemplated by Jandreau. Consequently, the preponderance of the evidence is against the claim for service connection for a bilateral elbow disability, a bilateral wrist disability, and bilateral ankle disabilities. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claims of service connection for disabilities of the elbows, wrists and ankles. Accordingly, they must be denied. In denying these claims, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). James Reinhart Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.