Citation Nr: 21069209 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-26 764 DATE: November 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder, is remanded. FINDING OF FACT The preponderance of the competent medical evidence is against a finding that the Veteran has, or has had at any time during the appeal, a hearing loss impairment meeting the criteria to be considered a disability for VA compensation purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1989 to September 1993. He served honorably in the United States Navy. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Entitlement to service connection for bilateral hearing loss (BHL) Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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 was incurred in service. 38 C.F.R. § 3.303; see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability, by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection is limited to those cases where disease or injury has resulted in a disability. In the absence of proof of a present disability for which service connection is sought, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of having a current disability is met when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A disability under 38 U.S.C. § 1110 refers to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). However, subjective complaints of pain in the absence of objective evidence of functional impairment are not sufficient to show a current disability for VA purposes. Id. at 1367-68. 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence of record in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The United States Court of Appeals for Veterans Claims (Court) has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 19 (2007). In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). VA regulations specifically define hearing loss as a disability only when certain measurements of reduced hearing acuity are met. 38 C.F.R. § 3.385. For this reason, the Board finds that the Saunders definition of a disability does not apply to the claimed hearing loss in this case. Cf. Martinez-Boden v. Wilkie, 32 Vet. App. 393 (2020) (holding that the Saunders definition of a disability is constrained, and the Court lacks the jurisdiction to review the Secretary's specific determination of what constitutes a disability in the Rating Schedule). Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 initial threshold matter that must be addressed (as in any claim seeking service connection) is whether or not there is competent evidence that the Veteran currently has (or during the pendency of the claim/appeal has had) the disability for which service connection is sought (a hearing loss disability in either ear). Here, the Veteran was afforded VA examinations in June 2014 and July 2016 by two different audiologists. The reports of those examinations document that the pertinent specialized testing revealed that the Veteran did not have hearing loss in either ear meeting the criteria to be considered disabling by VA. The Veteran did not have an auditory threshold of 40 decibels or greater in any of the pertinent frequencies (500, 1000, 2000, 3000, 4000 Hertz) for either ear. He did not have auditory thresholds of 26 decibels or greater for at least three of the pertinent frequencies in either ear. His speech recognition scores using the Maryland CNC Test were not less than 94 percent in either ear. The Board finds no evidence of record indicating that onset of any hearing loss disability has occurred after the most recent VA audiology examination. Additionally, the Board finds no contrary competent medical evidence of record that presents the type of specialized findings pertinent to this diagnostic question at issue to indicate that the Veteran has been diagnosed with hearing loss in either ear meeting the VA criteria to be considered disabling. Accordingly, the Board finds that the competent and probative VA examination report findings are persuasive. The Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing difficulty hearing). To this extent, the Board finds that the Veteran is competent to report that he has current difficulty hearing. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the diagnosis of a hearing loss disability that meets the criteria of 38 C.F.R. § 3.385 requires specific diagnostic testing which is outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). As it is not shown that the Veteran has (or during the pendency of this claim/appeal has had) a qualifying hearing loss disability, the threshold requirement for substantiating a claim of entitlement to service connection for such disability is not met. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for BHL; the benefit of the doubt rule is not applicable and the appeal in this matter must be denied. REASONS FOR REMAND Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Here, the Veteran has contended that he has PTSD associated with being assaulted by guards at NAS Kingsville, Texas after he turned himself in for being UA (unauthorized absence) during his Navy service. Specifically, he has stated that while he was confined to a restricted dormitory after turning himself in, the guards came into his room with guns drawn, threw him to the ground, and yelled at him. They threatened to harm him if he told anyone. He has also contended that he was experiencing suicidal ideation afterward and he was sent to Charter Hospital in Corpus Christi, Texas for civilian mental health treatment, and then on to Lackland AFB (Wilford Hall Medical Center) for further care. He then went to Naval Station Great Lakes and continued treatment. When the claimed stressor is physical or sexual assault in service, evidence from sources other than a veteran's service records may corroborate a veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and, statements from family members, roommates, fellow service members or clergy. Evidence of behavior changes following the claimed assault is one type of evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Credible supporting evidence may also consist of a medical opinion, based on review of the evidence, that the personal assault occurred. 38 C.F.R. § 3.304 (f)(5). The record shows that the Veteran was afforded a VA examination in May 2014. There, the examiner diagnosed him with PTSD alone. However, the examiner indicated that although the Veteran's assault stressor is adequate to support a diagnosis of PTSD, it is not related to personal assault. Rather, the examiner wrote that the Veteran's stressor is related to extreme fear or horror. The Board notes that the examiner did not address the Veteran's in-service suicidal ideation nor his mental health hospitalizations and treatment. 38 C.F.R. § 3.304(f)(5) outlines markers that can corroborate an unreported, in service personal assault, and specifically states that they can include substance abuse, deterioration in work performance, episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. In September 2014, VA issued a formal finding of inability to corroborate the claimed stressors for the Veteran's PTSD claim. However, the basis of the inability to corroborate his stressors was that there was insufficient information about them to send to U.S. Army and JSRRC and/or insufficient information to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. In other words, an inquiry was not actually conducted. What is more, the formal finding also stated that review of the Veteran's service treatment and personnel records was negative for any change in medical condition. The Board ascribes no probative weight to that determination. STRs and personnel records in the claims file at the time the formal finding was issued document the Veteran's significant mental health downturn, such as his suicidal ideation and multiple hospitalizations and extensive treatment. Additional STRs from Wilford Hall Medical Center associated with the claims file in September 2021 are consistent with the other medical evidence of record. The Board notes that service connection for PTSD requires corroboration of an in-service stressor whereas other mental health disabilities eligible for service connection and VA compensation do not. In this case, VA treatment records dated August 2015 contain additional mental health diagnoses during the appeal period. On remand, beyond to obtaining an adequate medical opinion regarding the Veteran's PTSD, development will also be directed toward other mental health conditions as suggested during the July 2021 Board hearing. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disabilities on appeal. Please ask the Veteran to provide the releases necessary for VA to secure any adequately identified private treatment records that the Veteran may wish VA to assist him in obtaining for the record. 2. After the record has been determined to be complete, please refer the claim to a clinician for a supplemental opinion as to the nature and etiology of an acquired psychiatric disorder. The Veteran's claims-file must be made available to and reviewed by the clinician. The clinician is requested to opine as to the following: (a.) Regarding psychiatric disorders other than PTSD, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) related to service. The opinion must address the diagnoses of (i) Anger-Other episodic Mood Disorder and (ii) Unspecified Trauma and Stressor-Related Disorder contained in August 2015 VA treatment records. (b.) The examiner should offer an addendum opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that an in-service personal assault occurred and, if so, whether it is at least as likely as not that PTSD is attributable to such assault. In so doing, the examiner should consider the fact that the occurrence of an in-service personal assault cannot be verified on the basis of the Veteran's reports alone, but rather must be corroborated by other credible evidence. Such evidence can include, for example, evidence of behavior changes such as evidence of a request for transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. STRs and personnel records in the claims file document the Veteran's significant mental health downturn, such as his suicidal ideation and multiple hospitalizations and extensive treatment. The examiner should offer an opinion as to whether these, or any other sorts of, markers are present so as to support the conclusion that it is as likely as not that the reported in-service assault occurred. For purposes of the opinion, it should be taken as fact that the Veteran carries a PTSD diagnosis. (c.) The examiner should also offer an opinion as to whether it is at least as likely as not that the Veteran's PTSD is related to any other verified stressor. For purposes of the opinion, it should be taken as fact that the Veteran carries a PTSD diagnosis. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fales, 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.