Citation Nr: 22044987 Decision Date: 08/09/22 Archive Date: 08/09/22 DOCKET NO. 17-32 259 DATE: August 9, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The Veteran does not currently have bilateral hearing loss for VA purposes. 2. The Veteran is not shown to have a diagnosed psychiatric disability that is due to a verified stressor, or another documented event or incident during his period of active service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for establishing entitlement to service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1967 to August 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2015 and May 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. When this case was last before the Board in August 2021, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with VA examinations to address the etiology of his claimed conditions. Appropriate examinations were provided. As such, the Board finds that the RO substantially complied with the directives in the August 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after 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). 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 Veteran prevailing in either event, or whether the weight 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. To deny a claim on its merits, the weight of the evidence must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Bilateral Hearing LossLegal Criteria Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests sensorineural hearing loss or tinnitus within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term "chronic disease" refers to those diseases, such as hearing loss, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, or 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. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Analysis The Board finds that the probative evidence of record does not document that the Veteran has a current diagnosis of any hearing loss disability for VA purposes. As such, service connection is not warranted on direct or presumptive bases for the claimed 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). The Board has thoroughly reviewed the Veteran's medical records. The Veteran's service treatment record (STRs) are silent for any treatment, diagnoses, or complaints of symptoms associated with hearing loss. The Veteran was initially provided with a May 2015 VA Hearing Loss examination. Pertinently, the audiological examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 AVG (1000-4000) RIGHT 10 10 5 15 30 15 LEFT 10 15 10 15 30 17.5 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. In response to the Board's August 2021 remand, the Veteran was next provided with a November 2021 VA Hearing Loss examination. Pertinently, the audiological examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 AVG (1000-4000) RIGHT 15 20 15 25 30 23 LEFT 15 15 15 25 35 23 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. As noted above, 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, or 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's hearing loss does not meet these requirements. The Veteran's VA treatment notes also do not indicate that the Veteran has a current diagnosis of hearing loss for VA purposes. Based on the above, the Board does not find evidence of any hearing loss disability for VA purposes at any time during the pendency of the appeal. The Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that the Veteran asserts that his claimed conditions are related to his active service, such statements are of no probative value, as the Veteran lacks the medical expertise to diagnose complex conditions or to render medical nexus opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, to the extent the Veteran asserts that he has a current hearing loss condition for VA purposes, such statements are inconsistent with the medical evidence of record that does not document any relevant diagnosis at any time during the pendency of the appeal. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Thus, notwithstanding his assertion that he has a bilateral hearing loss disability, the audiometric evidence reflects that the Veteran does not have a current hearing loss disability for VA purposes. See Palczewski, supra. As the evidence establishes that the Veteran does not have a current disability for VA purposes concerning his claimed bilateral hearing loss and has not had such disability at any point during the pendency of the appeal, the evidence is persuasively against the claim of entitlement to service connection. There is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. Acquired Psychiatric DisabilityLegal Criteria Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). 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, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). "Fear of hostile military activity" is defined to mean that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes incoming mortar, rocket, and sniper fire. Id. If there is no combat experience, or if there is a determination that the veteran engaged in combat, but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Analysis The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD, which he contends originated in service. The medical evidence of record indicates that the Veteran has a current diagnosis of PTSD with Unspecified Depressive Disorder. See November 2021 VA PTSD examination. The Veteran provided lay statements that while serving abroad the U.S.S. O'Callahan he participated in a live fire exercise where a torpedo was accidentally launched at his ship and that he was extremely frightened as the torpedo passed underneath his vessel. Further, during his January 2021 Board hearing the Veteran provided testimony where he described the torpedo incident. In response to the Board's August 2021 remand, the Veteran was afforded a November 2021 VA PTSD examination. During the November 2021 VA PTSD examination, the Veteran reported three potential stressors for his psychiatric disabilities. The Veteran's first stressor reported was a "live fire" torpedo incident that he alleged occurred during his service on the U.S.S. O'Callahan; the second stressor was a report that the Veteran's ship caught fire in 1969 and that they were dead in the water; and the third stressor reported was that the Veteran was on shore patrol during the Watts riots. The examiner noted that the first two stressors were adequate to support a diagnosis of PTSD, while the third stressor was not. Further, regarding the third stressor the examiner reported that the Veteran was not exposed to a traumatic event where he would have experienced, witnessed, or been confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of his self or others. The examiner opined that the Veteran's psychiatric condition was at least as likely as not (a 50 percent probability or greater) etiologically related to the Veteran's in-service torpedo incident. The record reflects that in a January 2022 Notice Letter, the RO determined that there was not enough information to verify the stressful events in-service described by the Veteran, specifically the event where his ship caught fire and the Veteran's reported shore patrol. The notice letter indicated that the RO required the Veteran to fill out and submit an attached VA Form 21-0781 within 30 days of the letter so the stressful events could attempt to be verified. The Veteran did not submit a VA Form 21-0781; however, the Veteran provided a Correspondence dated February 2022 which further detailed his claimed stressors. Notwithstanding the diagnosis of PTSD, there is no credible evidence to show that the claimed in-service events actually occurred as described. The Veteran's statements cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The record does not show confirmation of the occurrence of the Veteran's claimed in-service stressors. The Board specifically notes a May 2017 research response wherein the deck logs of the U.S.S. O'Callahan, as well as several other ships that participated in anti-submarine warfare exercises with the U.S.S. O'Callahan. The deck logs indicate that the U.S.S. O'Callahan fired several torpedoes and recovered an exercise MK44-1 torpedo that was fired by another ship, however, there were no entries on any of the ships that indicated that an exercise torpedo passed under the U.S.S. O'Callahan. Further, an April 2022 records research response indicated that the 1969 command history report and the deck logs of the U.S.S. O'Callahan did not provide any evidence to support the Veteran's claimed fire stressor event. In this case, despite the diagnosis of PTSD noted in the November 2021 VA opinion, the fact remains that the evidence of record does not verify the occurrence of the Veteran's claimed in-service stressors. Despite the Veteran's contentions, without credible evidence of an in-service stressor(s) the Veteran cannot meet the criteria for service connection for PTSD. As such, service connection for PTSD is not warranted. Lay testimony alone is not sufficient to establish that a stressor occurred; it must be corroborated by "credible supporting evidence." See Cohen v. Brown, 10 Vet. App. 128, 142 (1997). As such, neither the Veteran's own testimony, nor any evidence obtained after service, is sufficient to corroborate his claimed stressors. Despite following all required procedures to assist the Veteran in corroborating his claimed stressors, VA was not able to corroborate these stressors. Accordingly, the Veteran's claim for PTSD must be denied due to the lack of a corroborated in-service stressor. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.