Citation Nr: 21002508 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-17 590 DATE: January 13, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for a right ankle disability is denied. Service connection for a lumbar spine disability is denied. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. There was no in-service event, disease, or injury that could have caused PTSD. 2. The Veteran’s right ankle disability is not related to service and did not manifest within one year of separation from service. 3. The Veteran’s lumbar spine disability is not related to service and did not manifest within one year of separation from service. 4. Bilateral hearing loss is related to service or to service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 2. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 3. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 4. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1997 to September 2002. This appeal is before the Board of Veterans’ Appeals (Board) from April 2013 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In June 2016, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. In August 2018, the Board remanded the remaining issues on appeal along with the issue of entitlement to service connection for tinnitus with instruction to obtain Reserve service treatment records and an addendum medical opinion regarding bilateral hearing loss and tinnitus. All available records were obtained, including the Veteran’s Reserve service personnel records. He underwent a VA examination for hearing loss and tinnitus in February 2020. Based on this examination, service connection for tinnitus was awarded in a March 2020 rating decision, and that issue having been granted in full is no longer before the Board. The Board is therefore satisfied that that the instructions in its August 2018 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). In February 2019, VA received notice that the Veteran elected to opt into the Rapid Appeals Modernization Program (RAMP). VA failed to act on this election and proceeded to develop his appeal under the legacy system. In a September 2020 letter, the Veteran was informed of this failure and that he could still have his appeal adjudicated under the modernized system if he replied to the letter electing so. No reply was received by the Veteran, and as such the Board will adjudicate the appeal under the legacy system. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, including arthritis and organic diseases of the nervous system such as sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for PTSD The Veteran claims service connection for PTSD. While his appeal was pending, in a September 2019 rating decision he was awarded service connection for unspecified depressive disorder secondary to his service-connected left knee disability, effective July 2019. Although this is essentially service connection for an acquired psychiatric disability, it is an entirely separate disability than PTSD with an equally separate claimed etiology, and the Veteran is still not service-connected for a mental health disability for the period between his June 2011 PTSD claim and July 2019. As such, the Board will consider direct service connection for PTSD on its merits. Service connection for PTSD requires: (1) a diagnosis of the disorder made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-5); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a). There are several avenues to document an in-service stressor, other than obtaining verification from the Joint Services Records Research Center (JSRRC) or other government records repository: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to a veteran’s fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f). Lay evidence may establish an in-service stressor if the evidence establishes that a 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. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). Service treatment records include a December 2000 closing note from a community mental health clinic. The Veteran had brief treatment for work-related problems and interpersonal deficits beginning in October 1998 and had between two and 10 sessions. Treatment was intended to increase social skills and decrease stress. There was no diagnosis of any acquired psychiatric disability. No mental health abnormality was noted at his June 2002 separation examination, but in the accompanying report of medical history he reported that he had received counseling but denied having ever had trouble sleeping, depression, excessive worry, or been evaluated or treated for a mental illness. Service personnel records indicate that the Veteran did not have any overseas service. In November 2011 VA issued a formal finding of the unavailability of his complete Official Military Personnel File; however, those records which are present in the claims file affirmatively establish that he did not have overseas service, documenting domestic locations that are corroborated by his service treatment records. In his June 2011 claim, the Veteran stated that he had PTSD which began in September 2001 while serving in Iraq. In an accompanying statement, he described an incident in which he was walking with his friend (whom he named) in Iraq, when the friend triggered an IED that killed the friend and knocked the Veteran unconscious. In November 2011, VA issued a formal finding of a lack of information required to verify the Veteran’s stressor. The Veteran was notified that he needed to provide evidence of his stressor and/or of his claimed service in Iraq. Furthermore, VA identified the friend described in the Veteran’s statement. That soldier died in Baghdad in October 2007. In April 2012, VA issued an additional formal finding of a lack of information required to verify the Veteran’s stressor. This finding noted that VA has been unable to verify any overseas service by the Veteran. VA treatment records reflect that in December 2013 the Veteran reported serving in intelligence in Bosnia, Iraq, and Afghanistan. He reported mental health symptoms that began after several head injuries. He was diagnosed with PTSD with some symptoms suggestive of a bipolar disorder. He continued treatment thereafter. In April 2014, while engaging with his wife in couples’ therapy, their psychologist noted that he had grandiose thoughts. His wife stated the often has trouble knowing what information she hears about his work is accurate and what is not accurate. At his June 2016 hearing, the Veteran reported that he witnessed his friend killed by an IED in the summer of 2001, though this time he stated that it occurred in Bosnia. The Veteran underwent a VA examination in August 2019. He reported that he served two six-month deployments in Iraq in 2001 and 2002 and one twelve-month deployment to Afghanistan in 2004-05. He reported involvement in combat. He was diagnosed with chronic unspecified depressive disorder secondary to his knee disability, and his PTSD claim was not addressed. The Board finds that the evidence weighs against a finding of an in-service event, disease, or injury that could have caused PTSD. While many of the Veteran’s treatment providers have diagnosed PTSD, they have taken at face value his statements that he served in Iraq, Afghanistan, and Bosnia. These statements are not supported by records. Indeed, the Veteran on multiple occasions reports having been injured by an IED during a tour in Iraq several years before the United States was engaged in conflict there. Because the therapists based their opinions on statements by the Veteran that the Board finds to lack credibility, their diagnoses and opinions are of minimal probative value. While it true that the Veteran was counseled at a mental health clinic in service, this counseling was intended to improve social skills and reduce stress. No acquired psychiatric disability was diagnosed in service, and in any case, there is no credible evidence of any stressful incident on which a claim for PTSD may be based. For these reasons, the Board finds that the evidence weighs against a finding of an in-service event, disease, or injury that could have caused PTSD. Service connection is therefore denied. 2. Entitlement to service connection for a right ankle disability The Veteran claims service connection for a right ankle disability. Service treatment records reflect that in April 1998 the Veteran reported right ankle pain following an inversion twist while running. He was diagnosed with a right ankle sprain and given crutches for three days. In September 1998 he again reported right ankle pain after injuring it while running that morning. There was no edema and full range of motion. He was diagnosed with a mild contusion and instructed to follow-up if there was no improvement. In October 1998 he reported that he twisted his right ankle while walking downstairs that morning. There was no swelling and it could bear weight. He was diagnosed with an ankle strain. No current abnormality was noted at his June 2002 separation examination, though the accompanying report of medical history noted a history of ankle pain. In his June 2011 claim, the Veteran reported a right ankle disability that began in October 1997. In January 2013 the Veteran underwent a VA examination for his left ankle, but his right ankle was not addressed. VA treatment records reflect that in May 2013 the Veteran reported a history of a right ankle severe sprain. He stated that he injured both ankles in service and has had chronic pain ever since. He reported continued chronic pain in August 2013. The Veteran underwent a VA examination in May 2015. He reported that he injured his right ankle several times in service. He stated that he twisted it while running in basic training, fractured it in 1999 while fast-roping from a helicopter, injured it again in 2003, and fractured it again in January 2006. He was diagnosed with a right ankle strain. The examiner opined that his current ankle issues were less likely than not related to service. This opinion was based on the rationale that there was no supporting evidence of any persistent right ankle condition in his medical records. At his June 2016 hearing the Veteran’s representative stated that he has had continuous treatment for a right ankle disability since discharge. The Board finds that the evidence weighs against a finding that the Veteran’s right ankle disability is related to service or manifested within one year of separation from service. The VA examiner provided a probative opinion, explaining that the Veteran’s ankle disability is unlikely related to the issues he experienced in service because there is no record of continuous treatment. There is no medical opinion in the record to contradict this opinion. Furthermore, the Veteran’s lay reports of continuous ankle symptoms since separation are not credible. As discussed above, the Veteran continues to insist that he served in combat in Iraq, Afghanistan, and Bosnia, despite a lack of documentation of any overseas service or active duty contemporaneous with conflict in Iraq. Based on these reports the Board finds the Veteran to be an inherently poor historian for his periods of service and finds the presence and absence of treatment records to be more probative. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s right ankle disability is related to service or manifested within one year of separation from service. Service connection is therefore denied. 3. Entitlement to service connection for a lumbar spine disability The Veteran claims service connection for a lumbar spine disability. Service treatment records reflect that in June 1999 the Veteran reported back pain for eleven days. He reported that he was helping a friend move and felt a pop in his low back with pain since. Physical examination revealed muscle spasm. He was diagnosed with a low back strain. No such abnormality was noted at his June 2002 separation examination, but in the accompanying report of medical history he reported five years of consistent back soreness since basic training. VA treatment records reflect that in May 2003 the Veteran reported having back problems that worsened when he twisted his back slipping on ice in January. He reported that the pain now interfered with his job, causing his legs to “go dead” after standing up from the lying position. Pain was noted over his mid-thoracic spine going down to the lower spine. He was diagnosed with back pain. In his June 2011 claim, the Veteran reported a lower back disability that began in October 1997. The Veteran underwent a VA examination in January 2013. He reported that he injured his lumbar spine in 1999 while helping a friend move. He reported current flare-ups during cold weather. He reported constant use of a cane. X-rays were normal. He was diagnosed with a lumbar strain. The examiner opined that current back pain was less likely than not related to his in-service disability. This opinion was based on the rationale that he suffered a mild, self-limited injury in 1999 and did not have further therapy or treatment until his fall in 2003. The examiner believed that the post-separation injury was more likely than not the cause of his current symptoms. VA treatment records reflect that in May 2013 the Veteran reported that he has had back pain at work, mostly while sitting at a desk. He reported that he had re-injured his back since “combat.” He reported continued chronic pain in August 2013. An April 2015 MRI was unremarkable. Private treatment records reflect that in February 2015 the Veteran reported onset of back pain in 1997 during basic training with repeated injuries throughout his period of service. X-rays were a suboptimal evaluation secondary to radiographic technique and the Veteran’s obesity, but nevertheless reflected mild lumbar spine degenerative changes. He was diagnosed with degenerative disc disease of the lumbar spine. At his June 2016 hearing, the Veteran reported that he fell on his back slipping on the ice during physical training at Fort Leavenworth in 1999 or 2000. He reported that he was put on profile. He stated that his pain had been ongoing since separation from service. He reported a second fall during Reserve duty in January 2003. The Board finds that the evidence weighs against a finding that the Veteran’s lumbar spine disability is related to service or manifested within one year of separation from service. The VA examiner provided a probative opinion, explaining that the Veteran’s current disability is unlikely related to the issues he experienced in service because he had additional falls after service. There is no medical opinion in the record to contradict this opinion. The Veteran’s lay reports of continuous symptoms since separation are not credible, nor is his assertion of additional Reserve injuries after separation from active duty. As discussed above, the Veteran continues to insist that he served in combat in Iraq, Afghanistan, and Bosnia, despite a lack of documentation of any overseas service or active duty contemporaneous with conflict in Iraq. Based on these reports the Board finds the Veteran to be an inherently poor historian for his periods of service and finds the presence and absence of treatment records to be more probative. Thus, the contemporaneous record showing a January 2003 injury while working at Walmart is more probative than the more recent statements in which he describes this injury as during a period of Reserve service. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s lumbar spine disability is related to service or manifested within one year of separation from service. Service connection is therefore denied. 4. Entitlement to service connection for bilateral hearing loss The Veteran claims service connection for bilateral hearing loss. As discussed above, in a March 2020 rating decision the Veteran was awarded service connection for tinnitus. For the 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, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when the 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. See 38 C.F.R. § 3.385. Service treatment records reflect that at the Veteran’s August 1996 enlistment examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 5 0 10 5 LEFT 15 5 5 0 0 Speech audiometry testing was not conducted. He underwent a reference audiogram in October 1998. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 5 15 10 LEFT 10 0 0 0 0 Speech audiometry testing was not conducted. He next underwent an audiogram in connection with a July 2001 medical evaluation board. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 10 -5 LEFT 25 25 20 35 15 Speech audiometry testing was not conducted. A hearing abnormality was noted. The technician noted a large buildup of cerumen in the Veteran’s left ear, which he was treated for. One week later, he underwent another July 2001 audiogram. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 -5 LEFT 20 10 10 10 5 Speech audiometry testing was not conducted. No hearing loss disability was noted in the September 2001 medical evaluation board report. At his June 2002 separation examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 5 -5 LEFT 25 10 20 10 0 Speech audiometry testing was not conducted. No hearing loss abnormality was noted, and in the accompanying report of medical history the Veteran denied having ever experienced hearing loss. In his June 2011 claim, the Veteran reported that his hearing loss began in 2000. The Veteran attended a scheduled VA examination in September 2012, but the examiner was unable to conduct an audiological evaluation due to significant cerumen buildup. The Veteran underwent a VA examination in May 2013. He reported difficulty understanding speech in areas of background noise. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 45 45 45 LEFT 35 40 45 45 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. He was diagnosed with bilateral sensorineural hearing loss. The examiner opined that hearing loss was less likely than not related to service. This opinion was based on the rationale that although he was exposed to hazardous noise in service, audiometric testing and entrance and separation did not show a worsening of hearing ability. The examiner further opined that tinnitus was less likely than not related to service. Private treatment records reflect that in August 2013 the Veteran reported hearing loss due to significant noise exposure in service. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 50 55 60 LEFT 20 25 30 30 35 Speech discrimination testing was conducted but was not under the Maryland CNC Test. He was diagnosed with sensorineural hearing loss. VA treatment records reflect that in September 2014 the Veteran reported gradual decrease in hearing bilaterally. Pure tone thresholds were not recorded in his claims file; however, as a current disability is established, they are of limited probative value to the issue of service connection. Testing revealed a mild to moderate flat bilateral sensorineural hearing loss. Speech discrimination was 84 percent in the right ear and 100 percent in the left ear. At his June 2016 hearing, the Veteran reported that in service he was exposed to noise from multiple IEDs and firing a Howitzer. The Veteran underwent another VA examination in February 2020. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 45 45 40 LEFT 40 40 45 40 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 76 percent in the left ear. He was diagnosed with bilateral sensorineural hearing loss. The examiner opined that hearing loss was less likely than not related to service. This opinion was based on the rationale that the Veteran showed normal hearing in service. He had no significant threshold shifts between enlistment and separation audiograms in the right ear, but he had significant shift in the left ear. The examiner explained that “flat” hearing loss thresholds are not characteristic of damage due to hazardous noise exposure, but more likely are caused by a middle ear pathology such as eardrum dysfunction or fluid in the middle ear. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss is related to service or is related to his service-connected tinnitus. The February 2020 VA examiner noted a significant left ear shift in threshold from entrance to separation but did not explicitly state why this was insufficient evidence to establish a relationship. The examiner states that the thresholds observed are indicative not of acoustic trauma but some other ear disorder. Yet both at the in-service July 2001 medical evaluation board examination and at the aborted September 2012 VA examination the Veteran was noted to have an abnormal build-up of cerumen affecting his hearing. There is no indication if this buildup, first noted in service, is a contributing factor to his current hearing loss. Furthermore, there is no explanation in the record why acoustic in trauma in service is responsible for the Veteran’s tinnitus but not his hearing loss, nor is there an opinion as to whether tinnitus causes or aggravates hearing loss. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss is related to service or is related to his service-connected tinnitus. Service connection is therefore granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.