Citation Nr: 21066150 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 14-26 453 DATE: October 28, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for a mental disorder is denied. FINDINGS OF FACT 1. The Veteran is not currently diagnosed with a bilateral hearing loss disability as defined by VA regulation. 2. The Veteran is not currently diagnosed with a mental disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385 (2020) 2. The criteria for entitlement to service connection for a mental disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from July 1977 to September 1983. The Veteran also had active military service from September 1983 to November 1987 that is dishonorable for VA purposes. The Veteran is currently incarcerated and serving a life sentence. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for the issues on appeal. In May 2021, the Veteran's representative submitted a letter cancelling the Veteran's hearing request and requested a 90-day extension to submit written argument. That request was granted and the time has now passed without further submission of any written argument. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Claimed sensorineural hearing loss is considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). In rendering a decision on 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to 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). When considering whether lay evidence is competent, 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. 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 because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 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. Barr v. Nicholson, 21 Vet. App. 303 (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. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he is entitled to service connection for bilateral hearing loss related to noise exposure during service. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. During the course of the appeal, in October 2009, the Veteran submitted an undated audiogram. The Veteran's correspondence indicates that the audiogram was conducted in prison, the previous week, and the test report contains "TDCJ" presumed to stand for Texas Department of Corrections. However, the test results do not contain the audiologist's license number and a Maryland CNC test was no conducted. As such, the Board finds this audiogram is not in accordance with the requirements of 38 C.F.R. § 4.85(a), and is otherwise inadequate to show the Veteran has a hearing loss disability as defined by 38 C.F.R. § 3.385. In September 2016, the Veteran was afforded a VA audiology evaluation. Pure tone thresholds at the test frequencies of 500, 1000, 2000, 3000 and 4000 Hertz in the right ear were 10, 15, 10, 15, and 20, respectively; and in the left ear were 10, 15, 15, 25, and 25, respectively. Speech discrimination was 94 percent in the right ear and 98 percent in the left ear. The most fundamental requirement for any claim for service connection is that the Veteran must first establish he has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995). In this case, a current hearing loss disability for VA purposes is not shown in the Veteran's right or left ear. As noted above, a hearing loss disability is defined by regulation, i.e., 38 C.F.R. § 3.385, and the September 2016 VA audiometry findings did not produce findings that meet the above-stated regulatory definition of a hearing loss disability in the right or left ear. In addition, he does not meet either of the auditory threshold requirements, and his speech recognition score is not less than 94 percent. In addition, the Board notes that none of the audiometry findings in the Veteran's service treatment records (STRs) submitted by the Veteran reflect findings that he met the above-stated regulatory definition of a hearing loss disability in either ear. See STR Medical Photocopy, VBMS entries dated October 1, 2009. The claims file does not contain any other adequate audiometric findings dated within the appeal period. As the record does not demonstrate that the Veteran has a bilateral hearing loss disability within VA standards since the filing of the claim, there is no valid claim of service connection for bilateral hearing loss. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In so concluding, the Board recognizes that the Veteran is competent to report his hearing difficulty; however, his statements are not competent to establish that he has a bilateral hearing loss disability which as noted, must be shown by official audiometry. The Board has also considered the representative's contention that the case should be remanded for a hearing loss examination as the prison would not conduct an examination. However, while the record reflects that the Veteran was unable to attend a scheduled hearing loss examination in 2011; the VA was subsequently able to afford the Veteran a VA hearing loss examination in September 2016. Thus, there is no need to remand for an examination. The preponderance of the evidence is therefore against the service connection claim for a bilateral hearing loss disability, and, as such, the claim must be denied. 2. Entitlement to service connection for an inherited mental disorder The Veteran contends that he is entitled to service connection for an inherited mental disorder. He asserts that his parents used psychotropic drugs before his birth which caused him to develop a mental disorder. He asserts that the inherited mental disorder has caused his behavior which led to his incarceration. After a careful review of the record, the Board finds that the preponderance of the evidence is against the claim for entitlement to service connection for an inherited mental disorder. The threshold element in any service connection claim is evidence of a current disability. The Veteran has not submitted, and the record contains no evidence as to the existence of a current mental disorder. In support of his claim, the Veteran submitted service treatment records; however, they do not contain any complaints of, treatment for, or diagnosis of a mental disorder. The Veteran requested that the VA obtain copies of his father's service treatment records; however, as the Veteran reported that his father died in 1971, VA has no opportunity to obtain the requisite permission to obtain those records. The Veteran also reported that he was treated by two therapists for a period of time in 1993 to 1994, and in 1996, and that the latter therapist testified at trial that the Veteran had the potential to be a serial murderer. VA attempted to obtain those records but were unable to locate the therapists. The Board acknowledges that the Veteran is competent to describe events that he experienced during military service and to describe psychiatric symptoms that he may experience. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, a diagnosis of a mental disorder requires not just observation of certain symptoms, but also specialized training to diagnose psychiatric disorders. Additionally, a probative medical opinion on the etiology or underlying causes of any other psychiatric condition likewise requires the specialized training of a medical professional. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Thus, the Veteran's assertions with regard to the existence of an inherited mental disorder are insufficient to establish a diagnosis of a mental disorder. The Board notes the Veteran's contention that his mental disorder was inherited; however, the fact remains that there is no current disability. Thus, without a diagnosis of an actual mental disorder, there is no need to consider whether the claimed disorder would be considered congenital in nature. Even if a current mental disorder was diagnosed, there is no suggestion, beyond the Veteran's own claim for service connection, that the claimed mental disorder either began during or is otherwise caused by his military service. Accordingly, service connection for a mental disorder is denied. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.