Citation Nr: 21000936 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 09-28 988 DATE: January 6, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for a skin disorder, to include squamous cell carcinoma, actinic keratoses, and seborrheic keratoses, is denied. Service connection for a psychiatric disorder claimed as depression, post-traumatic stress disorder (PTSD), adjustment disorder, and/or cognitive disorder, is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that the currently diagnosed bilateral hearing loss is related to any incident of service or manifested to a compensable degree within one year following separation from service. 2. Tinnitus did not originate during service, did not manifest to a compensable degree within one year of service separation, and was not caused by in-service noise exposure. 3. The Veteran's skin disorder was not caused by service. 4. The Veteran's psychiatric condition did not originate in service. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385. 2. The criteria to establish entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). 3. The criteria to establish entitlement to service connection for a skin disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). 4. The criteria to establish entitlement to service connection for a psychiatric disorder, to include PTSD, depression, adjustment disorder, and/or cognitive disorder, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1954 to January 1958. This matter was previously before the Board of Veterans’ Appeals (Board) in December 2018 when the issues were remanded for further development. Further development having been completed; the matter is once again before the Board. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Arthritis (as an organic disease of the nervous system) is a chronic condition listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In regard to the competency of lay evidence, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed through the use of his senses, not medical expertise. See Layno, 6 Vet. App. At 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Service connection for bilateral hearing loss is denied. The Veteran contends that his bilateral hearing loss is related to active duty. Specifically, the Veteran contends that his bilateral hearing loss is related to in-service noise exposure while working on the flight line in close proximity to aircraft without ear protection. Service connection for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The record reflects that the Veteran has bilateral sensorineural hearing loss which meets the requirements stated in 38 C.F.R. § 3.385. A December 1957 report of medical examination at separation indicates that a whispered voice hearing test was conducted and resulted in a finding of normal hearing bilaterally. A July 1980 medical certificate and history indicates no hearing loss. A May 1994 VA examination indicates severe hearing deficit in both ears. In a January 2012 VA examination, the examiner stated that a medical opinion regarding the etiology of the Veteran’s hearing loss and tinnitus could not be provided without resorting to speculation. Pursuant to the December 2018 Board remand, the Veteran’s detention facility was contacted regarding a new audiological examination. However, the record indicates that the Veteran’s detention facility was unable to complete a new audiological examination due to not having the appropriate equipment necessary. A VA addendum opinion was provided in August 2020. The opinion was based on a review of available records. The examiner stated that due to no records of evaluation or treatment of hearing loss while in the military, an extensive history of civilian noise exposure and a diagnosis of labyrinthitis, it is this examiner's opinion that the Veteran's current hearing loss is less likely than not related to military noise exposure. The Veteran's contention that his hearing loss is related to his active service has been considered. However, in the August 2020 VA addendum opinion, the examiner stated that a review of the claims file was conducted. The examiner noted that service treatment records contain no record of evaluation or treatment for hearing loss while in-service. Instead, the examiner noted an extensive history of civilian noise exposure and a diagnosis of labyrinthitis. Based on this, the examiner opined that the Veteran's current hearing loss is less likely than not related to military noise exposure. The Veteran has asserted that his in-service noise exposure caused his disability. However, he is not competent to provide an etiology opinion and no competent medical provider has stated that his bilateral hearing loss began in service. The preponderance of the evidence is against a finding that in-service noise exposure caused the Veteran's bilateral hearing loss. Therefore, service connection is not warranted, and the claim is denied. 2. Service connection for tinnitus is denied. The Veteran contends that his tinnitus is related to his active service. In addition to direct service connection, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Tinnitus (an organic disease of the nervous system) is considered a chronic condition under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Therefore, 38 C.F.R. § 3.303(b) is applicable. Service connection may also be established for tinnitus based upon a legal presumption by showing that a disorder manifested itself to a compensable degree within one year from the date of separation from service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). As noted above, the Veteran contends that he was exposed to noise while working on the flight line in close proximity to aircraft while in-service, which caused hearing loss and tinnitus. He stated that his tinnitus occurs periodically with an unknown onset. The 1957 report of medical examination at separation is absent any notation of reported tinnitus. As noted above, the July 1980 medical certificate and history indicates no hearing loss or tinnitus. As noted above, in the January 2012 VA examination, the examiner stated that a medical opinion regarding the etiology of the Veteran’s hearing loss and tinnitus could not be provided without resorting to speculation. Pursuant to the December 2018 Board remand, the Veteran’s detention facility was contacted in an attempt to coordinate a new audiological examination. However, as noted above, the Veteran’s detention facility was unable to complete a new audiological examination due to not having the appropriate equipment necessary. A VA addendum opinion was provided in June 2020. The opinion was based on a review of available records. The examiner noted that the onset of the Veteran’s tinnitus is unknown. The examiner noted that the Veteran was evaluated in 2012 when he reported that he began to notice his tinnitus seven or eight years prior. The examiner also noted that the record indicates that the Veteran has reported that he has experienced tinnitus since his service. The examiner observed the conflicting statements with regard to the onset of the Veteran’s tinnitus and stated that no opinion regarding the etiology of the Veteran’s tinnitus can be stated at this time due to mere speculation. There are no other medical opinions in the record that indicate the Veteran's has current tinnitus that it is related to his period of service. The preponderance of the evidence is against the claim. The Veteran's service did not cause the Veteran's tinnitus, nor did his tinnitus manifest to a compensable degree within one year of service separation. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application; service connection is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for a skin disorder, to include squamous cell carcinoma, actinic keratoses, and seborrheic keratoses, is denied. The Veteran contends that his skin disorder is related to his service. Specifically, he contends that his condition is related to in-service exposure to jet fuel and fumes. The Veteran has a current diagnosis of actinic keratosis and actinic keratosis with focal transition for squamous cell carcinoma. The Veteran's skin disorders are not subject to presumptive service connection because his diagnosed skin disorders are not listed under 38 C.F.R. § 3.309(a). The Veteran is competent to report experiencing observable symptoms; however, he is not competent, as a lay-person, to provide a medical opinion pertaining to the cause of his skin disorders. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service treatment records (STRs) are silent for complaints or contemporaneous reports pertaining to the Veteran's skin. In the 1957 report of medical examination at separation, a normal skin and lymphatics clinical evaluation was noted. In a February 2020 Disability Benefits Questionnaire (DBQ), afforded pursuant to the December 2018 Board remand, the examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner indicated that the Veteran has diagnoses of actinic keratosis and actinic keratosis with focal transition for squamous cell carcinoma. The examiner noted that the Veteran has not been treated with medication in the past 12 months for any skin condition. The examiner also noted that the Veteran has not had any treatments or procedures other than systemic or topical medication in the past 12 months for any skin condition. The examiner indicated that actinic keratosis covers between 20 and 40 percent of the Veteran’s total body area and 5 to 20 percent of his exposed body area. Actinic keratosis with focal transition for squamous cell carcinoma was noted to cover no total body area or exposed body area. The examiner opined that the Veteran’s skin conditions are less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran reported exposure to JP-4 fuel in-service. However, the examiner stated that there is no peer reviewed medical literature to support that JP-4 fuel can cause skin cancer in humans. The examiner stated that there is no evidence that the Veteran’s skin conditions incurred in service or were caused by an in-service injury, event or illness. The evidence reflects the Veteran having been diagnosed with skin disorders. However, as noted above, the Veteran is not competent to relate his skin disorders to his service, to include exposure to jet fuel and fumes. A preponderance of the evidence is against a finding that the Veteran's skin disorders were caused by service. Although the Veteran has been diagnosed with skin disorders, the Veteran is not competent to relate his skin disorders to his service, to include exposure to jet fuel and fumes. STRs are silent for complaints or contemporaneous reports pertaining to the Veteran's skin. The Veteran’s 1957 report of medical examination at separation indicates a normal skin and lymphatics clinical evaluation. Therefore, service connection is not warranted, and the claim is denied. 4. Service connection for a psychiatric disorder claimed as depression, PTSD, adjustment disorder, and/or cognitive disorder, is denied. The Veteran contends that he has a psychiatric disorder that is related to his service. The December 1957 report of medical examination at separation indicates a normal psychiatric clinical evaluation. However, the Veteran reported frequent trouble sleeping for several years, with his problem being greater since arriving in Korea. Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-V, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § § 3.304(f), 4.125(a). As with all claims for service-connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A May 1994 general medical examination indicates dysthymia for about six years with episodes of depression, which worsened after home and business destruction. The pertinent diagnosis was depressive disorder in remission with treatment. An August 2007 VA mental health note indicates a history of cognitive disorder, not otherwise specified, and ruled out PTSD. An October 2007 VA PTSD screening indicates that the Veteran did meet the full diagnostic criteria for PTSD. A January 2012 VA medical examination for PTSD also indicates the Veteran did not meet the criteria for PTSD. The examiner acknowledged that the records indicated the Veteran had re-experiencing symptoms in the past, but he was not presently reporting any re-experiencing symptoms. In a December 2016 statement in support of claim for service connection for PTSD, the Veteran stated that at some time between 1955 and 1958, while stationed at Tyndale Air Force Base, two aircraft collided, killing everyone onboard. He stated that he helped search for those killed in the collision. He also stated that while stationed in Korea, a fellow servicemember was attacked by a Korean soldier while the two were on duty together. The second incident is also alleged to have occurred between 1955 and 1958. In May 2018, VA notified the Veteran that the information that he provided regarding his stressful events in-service did not meet the minimum level of detail needed for VA to seek assistance from the U.S. Army and Joint Services Records Research Center (JSRRC). The Veteran was asked to provide additional information regarding his in-service stressors. As of the date of this decision, the record does not indicate that the Veteran has provided the additional information as requested in the May 2018 correspondence. In a February 2020 DBQ, afforded pursuant to the December 2018 Board remand, the examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner indicated that the Veteran does not have a diagnosis of PTSD that conforms to the DSM-V criteria, and that the Veteran does not have any other mental disorder that conforms to the DSM-V criteria. The examiner noted that the Veteran is not in mental health treatment currently, and that the Veteran denied the need for treatment. The examiner noted a history of mental health treatment after a divorce in 1994 and after a tornado destroyed the Veteran’s home and business. The examiner noted previous diagnoses of dysthymia, major depressive disorder, adjustment disorder, PTSD, and cognitive disorder, not otherwise specified. However, the examiner noted that at the time of the examination, the Veteran does not meet DSM-V criteria for PTSD, adjustment disorder, or cognitive disorder, not otherwise specified. The examiner noted that the Veteran reports no significant distress and impairment, other than incarceration. The Veteran denied symptoms of depression, anxiety, re-experiencing or avoidance of stressors, or insomnia. The examiner opined that the Veteran’s psychiatric condition, to include PTSD, was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran does not have a current mental diagnosis that meets the DSM-V criteria. The record does not include a diagnosis of PTSD that conforms to the legal requirements of 38 C.F.R. § 3.304(f), which requires "an in-service stressor and credible supporting evidence that the claimed in-service stressor occurred." Without a verified stressor, there can be no valid diagnosis of PTSD in this case based on the present record. Apart from the Veteran's account of his claimed stressors, the Veteran is not competent to formally diagnose himself with a psychiatric disability, as providing formal psychiatric diagnoses is outside the realm of knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The statements provided by the Veteran asserting that he has PTSD related to in-service events are not competent and are entitled to no probative weight. With respect to non-PTSD psychiatric disorders, including depression, adjustment disorder, and/or cognitive disorder service connection is also not warranted because the preponderance of the competent evidence is against a finding that any psychiatric disability is related to service. Other than the reported sleeplessness in-service, which is noted above, there is no record of any mental health issues in-service. Furthermore, the February 2020 examiner noted that the Veteran does not meet DSM-V criteria for PTSD, adjustment disorder, or cognitive disorder, not otherwise specified. The examiner noted that the Veteran reports no significant distress and impairment, other than incarceration. The examiner noted that the Veteran denied symptoms of depression, anxiety, re-experiencing or avoidance of stressors, or insomnia. As noted above, the examiner opined that the Veteran’s psychiatric condition, to include PTSD, was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Again, the examiner stated that the Veteran does not have a current mental diagnosis that meets the DSM-V criteria. There is no evidence and/or opinions of record that indicate that the Veteran's non-PTSD psychiatric disorders, to include depression, adjustment disorder, and/or cognitive disorder are related to his active service. The Veteran's records do not include a diagnosis for a psychiatric disorder related to the Veteran' military service. Based on a review of the evidence and the applicable laws and regulations, the preponderance of the evidence is against the Veteran's claim for service connection for a psychiatric disorder to include PTSD, depression, adjustment disorder, and/or cognitive disorder. In reaching this conclusion, the applicability of the benefit-of-the-doubt doctrine has been considered; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran's claim for a psychiatric disorder, to include PTSD, depression, adjustment disorder, and/or cognitive disorder must be denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.