Citation Nr: 21042704 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-28 778 DATE: July 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and anxiety disorder, is denied. Entitlement to service connection for loss of concentration is denied. Entitlement to service connection for fear of knives is denied. Entitlement to service connection for loss of memory is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a bilateral hearing loss disability for VA purposes at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran's tinnitus began during active service or is otherwise related to an in-service injury or disease. 3. The Veteran's hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that headaches began during active service, or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that obstructive sleep apnea began during active service, or is otherwise related to an in-service injury or disease. 6. The preponderance of the evidence is against finding that the Veteran has had PTSD at any time during or approximate to the pendency of the claim. 7. The preponderance of the evidence is against finding that the Veteran's current anxiety disorder began during active service, or is otherwise related to any specific in-service event, injury, or disease. 8. The preponderance of the evidence is against finding that the Veteran's loss of concentration began during active service, or is otherwise related to an in-service injury or disease; and he does not currently have a disability related to any specific in-service event, injury, or disease that is manifested by loss of concentration. 9. The preponderance of the evidence is against finding that the Veteran's fear of knives began during active service, or is otherwise related to an in-service injury or disease; and he does not currently have a disability related to any specific in-service event, injury, or disease that is manifested by fear of knives. 10. The preponderance of the evidence is against finding that the Veteran's loss of memory began during active service, or is otherwise related to an in-service injury or disease; and he does not currently have a disability related to any specific in-service event, injury, or disease that is manifested by loss of memory. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131. 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for headaches are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for entitlement to service connection for an acquired psychiatric disorder, including PTSD and anxiety disorder, are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for entitlement to service connection for loss of concentration are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for entitlement to service connection for fear of knives are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for entitlement to service connection for loss of memory are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1988 to August 1992. For his meritorious service, the Veteran was awarded (among other decorations) the Southwest Asia Service Medal and the Kuwait Liberation Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. In January 2021, the Board remanded this matter for additional evidentiary development. In February 2021, the RO requested that the Veteran identify any medical care providers seen by him for his claimed disabilities since his discharge from the service, and requested that the Veteran provide additional information to verify his claimed inservice stressors. In February 2021, the RO obtained additional VA treatment records relating to the Veteran. The RO then obtained an April 2021 VA examination for hearing loss and tinnitus addressing the etiology of each of these conditions. The Board finds these actions to be in substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). SERVICE CONNECTION Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Moreover, where a veteran served continuously for 90 days or more during active service, and sensorineural hearing loss, hypertension, or psychoses become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has bilateral hearing loss related to inservice acoustic trauma incurred while serving onboard the aircraft carrier, U.S.S. America. The initial question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. For 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 at 500, 1000, 2000, 3000, and 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 Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The April 2021 VA examination for hearing loss and tinnitus noted the Veteran's inservice history of noise exposure. An audiological evaluation conducted at the time did not reflect a current hearing loss as defined by 38 C.F.R. § 3.385. The Veteran had puretone decibel thresholds at 20 ore below at each tested frequency, and his speech recognition scores were 96 percent bilaterally. The report concluded with diagnoses of normal right and left ear hearing. The Board finds this examination adequate (as it performed all necessary testing required to determine if the Board has bilateral hearing loss for VA purposes) and probative (as it speaks directly to the issue of whether the Veteran has a current disability). Aside from the VA examination, the Veteran's post service treatment records do not reflect audiological findings of or a diagnosis of bilateral hearing loss for VA purposes as defined by 38 C.F.R. § 3.385. While the Veteran believes he has a current diagnosis of bilateral hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus. The Veteran contends that he has tinnitus as a result of in-service noise exposure. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of tinnitus, the preponderance of the evidence weighs against finding that his tinnitus began during service or is otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records are silent as to any complaints or diagnoses of tinnitus during service. His October 1992 separation examination noted that his ears were normal. On a medical history report, completed at that time, the Veteran denied having any history of ear trouble or hearing loss. Post-service treatment records are also silent as to any complaints or diagnoses of tinnitus for more than 20 years after his separation from service. On his April 2021 VA examination for hearing loss and tinnitus, the Veteran reported a history of constant tinnitus, perceived as a ringing in his ears, beginning in the year 2000. The report noted a current diagnosis of tinnitus. The VA examiner then opined that the Veteran's tinnitus is not at least as likely as not related to an in-service injury, event, or disease. In support of this opinion, the VA examiner noted that the Veteran's service treatment records are silent as to any subjective complaints of or treatment for tinnitus. The VA examiner also noted the Veteran's reported onset of this condition beginning in the year 2000, and that his current audiological evaluation revealed normal hearing thresholds, bilaterally. The VA examiner's opinion is both adequate and probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives the most probative weight to the April 2021 VA examiner's opinion. For these reasons, the preponderance of the evidence is against the claim; thus, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service-connection for tinnitus is denied. 3. Entitlement to service connection for hypertension. The Veteran contends that he developed hypertension as a result of his military service. The Veteran has a current diagnosis of hypertension as evidenced by a March 2014 VA treatment report. Hypertension is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran's service treatment records are silent as to any treatment for or diagnosis of hypertension. His March 1992 separation examination noted that his heart and vascular system were normal. The examination report listed his blood pressure as 110/80. On a medical history report, completed at that time, the Veteran indicated that he did not have a history of high blood pressure. The Veteran filed his claim seeking entitlement to service connection for hypertension in December 2013. The first post service diagnosis of hypertension noted in his post service treatment records was in March 2014, over 21 years after his separation from military service, and two decades outside of the applicable presumptive period. At his March 2020 hearing before the Board, the Veteran indicated that he could not remember having symptoms of hypertension during his military service. In a January 2014 statement, he indicated that he had not previously been treated for this condition. Thus, no evidence of continuity of symptomatology is shown or even alleged. The Veteran is also not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As the only evidence linking the Veteran's hypertension to his military service twenty years earlier are the bare contentions of the Veteran, the Board finds that the evidence is not sufficient to trigger VA's duty to obtain a medical opinion in this case. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that while competent evidence is not required to trigger VA's duty to provide a VA examination or opinion, a mere conclusory generalized lay statement that a service event or illness, or service-connected disability, caused the claimant's current condition is insufficient to require the Secretary to provide an examination). There is no evidence of hypertension in service or for more than twenty years thereafter. Therefore, service connection for hypertension must be denied. 4. Entitlement to service connection for headaches. The Veteran asserts that he has headaches related to his military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current headache disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A review of the Veteran's service treatment records is completely silent as to any complaints of or treatment for headaches. The Veteran's July 1992 separation examination was silent as to any complaints of headaches, or a disability manifested by headaches. On a medical history report completed at that time, the Veteran denied having any history of having frequent or severe headaches. Post-service treatment records are also silent as to any complaints of or treatment for headaches, or a disability manifested by headaches. While the Veteran is competent to report having experienced symptoms of headaches since his military service, he has not done so in this matter. His service treatment records do not show any complaints of or treatment for headaches, and the Veteran denied having any history of severe or frequent headaches during his separation examination. Moreover, the first post service evidence of any kind relating to headaches was his claim seeking service connection for this condition in December 2013, over 21 years after his separation from service. In a February 2014 statement, the Veteran denied having received any prior treatment for this condition. Moreover, subsequent treatment records identified by the Veteran do not show a current diagnosis of headaches or migraines, or a disability manifested by headaches. The lack of in-service evidence or of any indication that the Veteran's disability is related to his active service thus does not require a VA examination prior to making a determination. The Veteran is not competent to provide a diagnosis of this care or to have related this condition to his military service. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau, 492 F.3d at 1377 n.4. Consequently, the preponderance of the evidence is against the Veteran's claim for service connection for headaches. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 5. Entitlement to service connection for obstructive sleep apnea. The Veteran contends that service connection is warranted for obstructive sleep apnea. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea, the preponderance of the evidence weighs against finding that this condition began during service or is otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records are completely silent as to any complaints of or treatment for a sleep disorder during service. On a medical history report completed pursuant to his separation examination in July 1992, he denied having any history of frequent trouble sleeping. In a January 2014 statement, the Veteran indicated that he had not previously been treated for this condition. A May 2016 VA mental health assessment noted a diagnosis of sleep apnea. This was 23 years after his separation from service. While the Veteran is competent to report having experienced ongoing symptoms of sleep apnea, such as trouble sleeping and fatigue, since his service, he has not done so in this case. Moreover, he is not competent to provide a diagnosis in this case or determine that any symptoms he was experiencing were manifestations of obstructive sleep apnea. The issue is medically complex, as it requires knowledge and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1372. And, as above, the lack of evidence of an in-service incurrence or of any indication of a nexus means no VA examination is required here. Consequently, the Board gives more probative weight to the medical evidence of record, which includes the Veteran's denial of any sleeping problems during service and the lack of any sleep related problems for decades thereafter. The Board also notes that there is no evidence of any causal relationship between any service-related disabilities and his sleep apnea. Accordingly, the claim for service connection for obstructive sleep apnea must be denied. 6. Entitlement to service connection for an acquired psychiatric disorder, including PTSD. The Veteran contends that he has an acquired psychiatric disorder, including PTSD, as a direct result of his military service. The question for the Board is whether the Veteran has a current psychiatric disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. A review of the Veteran's service treatment records is completely silent as to any complaints of or treatment for an acquired psychiatric disorder. His July 1992 separation examination listed his psychiatric status as normal. On a medical history report, completed pursuant to his separation examination, the Veteran denied having any history of nervous trouble of any sort, depression, or excessive worry. In December 2013, the Veteran filed his present claim seeking service connection for an acquired psychiatric disorder, claimed as PTSD. Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, 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. See 38 C.F.R. § 3.304(f). In February 2021, the RO requested that the Veteran provide information concerning the inservice stressor which he claims led to his PTSD. No reply to this request was received. The Veteran's post service treatment records are silent as to any treatment for or diagnosis of PTSD. Moreover, the Board finds that the Veteran is not competent to provide a diagnosis of this disability. The Veteran has, however, been diagnosed with an acquired psychiatric disorder. Specifically, a December 2016 VA psychiatric assessment report concluded with a diagnosis of anxiety disorder. This report noted that the Veteran denied any history of psychiatric treatment. Based upon a review of the Veteran's claims file, the Board concludes that the preponderance of the evidence of record is against finding that he has had PTSD at any time during or approximate to the pendency of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no medical evidence establishing a diagnosis of PTSD and/or a link between his current symptomatology and the claimed in-service stressors. Thus, service connection for PTSD must be denied. The evidence of record does, however, establish that the Veteran currently has an acquired psychiatric disorder, diagnosed as anxiety disorder. Thus, the Board shall now focus on whether the Veteran's acquired psychiatric disorder is related to his military service, including his claimed inservice stressors. Based upon a review of the evidence of record, the Board concludes that the Veteran's current anxiety disorder did not begin during his military service and is not otherwise related to any specific in-service event, injury, or disease. A review of the Veteran's service treatment records is completely silent as to any complaints of or treatment for an acquired psychiatric disorder. His July 1992 separation examination listed his psychiatric status as normal. On a medical history report, completed pursuant to his separation examination, the Veteran denied having any history of nervous trouble of any sort, depression, or excessive worry, Post-service treatment records show that the Veteran was not diagnosed with or received treatment for any psychiatric disorder until December 2016, over 24 years after his separation from military service and decades outside of the applicable presumptive period for psychosis. While the Veteran is competent to report having experienced symptoms of anxiety, depression, nightmares, and stress, since service and consistently thereafter, he has not done so in this case. Moreover, to the extent the Veteran claims he has had ongoing symptoms of anxiety, nightmares, and depression since his military service, his contentions of ongoing psychological symptomatology since service have not been consistent and are largely not credible due to internal inconsistency. On a medical history report completed by the Veteran in July 1992, he denied any history of depression or excessive worry, frequent trouble sleeping, or nervous trouble of any sort. Thus, his contentions are largely not credible due to inconsistency with other evidence of record. The Veteran is also not competent to provide a diagnosis in this case or determine that any such symptoms were manifestations of his current acquired psychiatric disorder as the Veteran has not demonstrated the necessary medical expertise. This issue is medically complex, as it requires specialized medical education and knowledge of psychological pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran denied any history of psychiatric treatment prior to December 2016. Moreover, although he was asked to provide details which were to verify his alleged inservice stressor, he failed to do so. As the only evidence linking the Veteran's anxiety disorder to service are the bare contentions of the Veteran, the Board finds that the evidence is not sufficient to trigger VA's duty to obtain a medical opinion in this case. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that while competent evidence is not required to trigger VA's duty to provide a VA examination or opinion, a mere conclusory generalized lay statement that a service event or illness, or service-connected disability, caused the claimant's current condition is insufficient to require the Secretary to provide an examination). Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder, including PTSD and anxiety disorder. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on next page) 7. Entitlement to service connection for loss of concentration. 8. Entitlement to service connection for fear of knives. 9. Entitlement to service connection for loss of memory. The Veteran is seeking entitlement to service connection for disabilities manifested by loss of concentration, fear of knives, and loss of memory. Initially, the Veteran's service treatment records are silent as to any complaints of or treatment for loss of concentration, fear of knives, and/or loss of memory. On a medical history report, completed pursuant to his separation examination in July 1992, the Veteran denied having any history of loss of memory. Post service records are silent as to any complaints of loss of concentration, fear of knives, and/or loss of memory until December 2013, which is 21 years after the Veteran's separation from military service. Statements by the Veteran to the effect that he has loss of concentration, fear of knives, and/or loss of memory, or a disability manifested by these conditions does not constitute competent medical evidence of a current disability. Notably, the Court of Appeals for Veterans Claims has held that, for purposes of determining whether the Veteran has a current disability in the context of psychiatric disorders, VA has "expressly limited compensation to disabilities conforming to a DSM diagnosis." Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 395 (2020). (Continued on next page) In the absence of a current medically diagnosed disability manifested by loss of concentration, fear of knives, and/or loss of memory, there is no basis for granting service connection for these claimed conditions. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Yates, 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.