Citation Nr: 21076621 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-45 012 DATE: December 27, 2021 ORDER Service connection for an acquired psychiatric disability, to include PTSD is denied. Service connection for back condition is denied. Service connection for right ankle condition is granted. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of an acquired psychiatric disorder, to include PTSD. 2. The Veteran's back condition was not present in service or until many years thereafter and is not related to service. 3. The Veteran's right ankle condition is related to service. 4. The Veteran does not have hearing loss in either ear for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a back disability, to include as secondary to service-connected right ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38C.F.R. §§3.102, 3.303. 3. The criteria for service connection for right ankle condition have been met. 38 U.S.C. §§ 1110, 1130, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection of 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1993 to May 1995. The Veteran presented sworn testimony at a hearing before the undersigned in March 2017. Service Connection 1. Entitlement to service connection for acquired psychiatric condition, to include PTSD. The Veteran seeks service connection for a psychiatric disability, which he relates to an incident during service. Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). At the March 2017 Board hearing, the Veteran testified that he developed a psychiatric disability, to include PTSD as a result of nearly being run over by a semi-truck. See March 2017 Hearing Transcript at 9. The Veteran's service treatment records are absent treatment or diagnosis of psychiatric disorder. The Veteran testified that he is not in treatment, nor has he ever sought treatment for his psychiatric disability. Id at 9. The testified that since the incident in service, he developed great fear and anxiety whenever he drives. As a result, his family is afraid to ride with him and it impacts his life every day because he has a 100-mile round-trip commute work each day. Id at 11. The critical question is whether the Veteran has PTSD or an acquired psychiatric disorder other than PTSD. In this regard, the Board remanded this issue for additional development, to include a VA examination in February 2019. The Board concludes that the Veteran does not have a current diagnosis of PTSD or of an acquired psychiatric disorder other than PTSD and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Here, the record contains no diagnosis of PTSD or of an acquired psychiatric disorder other than PTSD by a medical professional. While the Veteran believes he has a current diagnosis of PTSD or some other acquired psychiatric disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). The evidence of record is absent any diagnosis for an acquired psychiatric disorder, to include PTSD. The Veteran was afforded a VA examination in July 2019. examiner opined that the Veteran's symptoms do not meet the diagnostic criteria for PTSD, or another acquired psychiatric disorder. As noted above, the examiner noted that the Veteran reported that during service, a truck with no lights ran over a man who was in his sleeping bag and crushed his pelvis and another man had injuries to his knees. The Veteran reported he has had anxiety driving close to "semi" truckers. Nonetheless, the examiner concluded that the Veteran's current symptoms did not satisfy the diagnostic criteria for PTSD or any other mental disorder. As the opinion was provided by a medical professional competent to opine on this matter, and the opinion was based on review of the Veteran's treatment records and provided rationale in support of her opinion, the Board finds the July 2019 VA examination and opinion to be both probative and persuasive. Given the evidence discussed above, there is no current diagnosis of PTSD or an acquired psychiatric disorder other than PTSD. As a result, the Board finds that the preponderance of the evidence is against the claim. As such, service connection for an acquired psychiatric disorder, to include PTSD, must be denied. 2. Entitlement to service connection for back condition. The Veteran asserts that he developed a back condition as a result of his training as a fire support specialist during active duty. He asserts that his training sessions which included road marches and field exercises, both while carrying heavy sacks. See March 2017 Hearing Transcript at 3. The Veteran's service records confirm a specialty in fire support. See December 2014 Certificate of Release or Discharge from Active Duty. The Veteran submitted a statement from a fellow service man that attests to the conditions experienced during service; however, the statement did not describe observing the Veteran complaining or exhibiting back problems. See May 2017 Correspondence. The Veteran's service treatment records are absent treatment or diagnosis of a back condition. However, the Veteran testified that he did not seek treatment for his back during service or for a number of years after. Id at 3, 4. The Veteran stated he sought chiropractic treatment for his back several years after service; however, he has not submitted those records. In August 2013, the Veteran was provided a VA examination. The examiner concluded there was not sufficient pathology to render a diagnosis of a back condition. See August 2013 VA examination. As previously note, the Board remanded this issue for additional development in February 2019. The Veteran was afforded a post remand VA examination in July 2019. The examiner diagnosed degenerative arthritis of the spine. See July 2019 Back Conditions Disability Benefits Questionnaire (DBQ). The July 2019 examiner provided a negative nexus opinion. The examiner reasoned that the Veteran's history, including his separation examination had no documentation of recurrent back pain and there was no evidence regarding chronicity of back pain noted in the Veteran's medical records was noted in the available medical records which many years after service documented a normal back examination. Id. No medical opinions refuting the VA examiner's opinion have been rendered. The VA examiner's medical opinion outweighs the Veteran's personal contentions pertaining to the etiology of his back condition as the mechanics of hip degeneration is a medically complex question. The evidence of record does not support that the Veteran sustained an in-service injury to his back which can be granted. This is because the evidence does not show that the Veteran had in-service onset of low back pain, did not have a diagnosis of a low back disability in-service, did not have continuity of symptomatology, and his current low back disability is not related to service. The Board notes the Veteran's assertions that his back condition is related to service. However, the etiology of his back pain and degenerative arthritis of the spine is medically complex requiring expert knowledge, skills, and testing. The evidence shows that the Veteran did not begin to experience low back symptoms in service, did not have low back pain or diagnosis in, shortly after service or since service, and thus, the Board is unable to grant her claim. As such, the claim is denied. 3. Entitlement to service connection for right ankle condition. The Veteran seeks service connection for a right ankle condition. Specifically, he asserts that while marching in service, he rolled his right ankle. See August 2013 VA examination. In August 2012, the Veteran's private examiner diagnosed the Veteran with osteoarthritis with sinus tarsitis, right ankle. He noted the injury is painful and exacerbated by long ambulation and some shoe wear which impacts the Veteran's lifestyle and gate pattern. See August 2012 Private Examination Report. The examiner did not provide an opinion with regard to the nexus of the Veteran's right ankle injury; however, under history, the Veteran relayed that the injury occurred during service. The August 2013 VA examiner provided a negative nexus opinion. The examiner reasoned that there is no medical evidence showing continuous ankle problems from the time of service until 2012. The examiner added, based on the available evidence, it would be mere conjecture for any physician to state that the Veteran's current right ankle complaints are related to service. He added, too much time has passed for other ankle injuries to have occurred in the process of living a normal, active life. At the March 2017 Board hearing, the Veteran testified that the pain from that injury has been recurrent since that time. See March 2017 hearing transcript at 17. The Board observed that the Veteran is competent to report symptoms of his right ankle injury during service and since service. See Davidson v. Shinseki, 581 F.3d at 1313; see February 2019 BVA Decision. The Veteran has a current diagnosis of chronic/ recurrent deltoid ligament sprain. See July 2019 Ankle Conditions DBQ. The July 2019 post remand examiner provided a negative nexus opinion. The examiner reasoned that the Veteran did not have ongoing complaints, evaluations or treatments during or subsequent to active-duty service While the July 2019 VA examiner provided a negative nexus, the Board finds that the opinion carries no probative weight as it fails to address the Veteran's competent, credible report of symptoms since service. After resolving any doubt in the Veteran's favor, the Board finds that the Veteran's current chronic recurrent deltoid ligament right ankle sprain had its onset in service. Thus, service connection for chronic recurrent deltoid ligament right ankle sprain is warranted. 4. Entitlement to service connection for bilateral hearing loss. The Veteran seeks service connection for bilateral hearing loss. Specifically, he testified that while driving the tank, his ear cup became loose. The engine noise and vibration number almost instantly his ear. He stated, he was driving like this for hours. See March 2017 hearing transcript at 13. Additionally, he stated his right ear was numb as a result of this event for 3-4 days but he did not follow up with medical care. See October 2013 VA examination. The RO conceded in-service exposure to excessive noise and/or acoustic trauma. See September 2013 VA 21-2507a, Request for Physical Examination. The Veteran has worked in accounting/purchasing since 1997 and denies post-service noise exposure. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 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 Veteran was afforded a VA hearing examination in October 2013; however, he did not have current diagnosis of bilateral hearing loss for VA purposes. In February 2019, the Board remanded this issue for a contemporaneous VA examination. In July 2019, the Veteran was afforded a VA examination regarding his hearing loss. The July 2019 hearing examination revealed the Veteran does not have hearing loss in either ear for VA compensation purposes. While the Veteran is competent to report the symptoms he observes, such as decreased hearing ability, he is not competent to report that he has a hearing loss disability, because such a determination requires specific audiometric findings. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, notwithstanding his assertion that he has bilateral hearing loss disability, the audiometric evidence reflects that the Veteran does not have current a hearing loss disability in either ear for VA purposes. The claim must be denied on the basis that the Veteran does not have a current disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). As application of 38 C.F.R. § 3.385 reflects that the Veteran does not have a current hearing loss disability, service connection for bilateral hearing loss must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.