judge_norm: P M DILORENZO

text:
Citation Nr: 1720000
Decision Date: 06/06/17    Archive Date: 06/21/17

DOCKET NO.  15-31 133	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts

THE ISSUES

1.  Whether new and material evidence has been received to reopen a service connection claim for a right foot disorder.

2.  Whether new and material evidence has been received to reopen a service connection claim for a left foot disorder.

REPRESENTATION

Veteran represented by:	Michael J. Kelley Esq.

ATTORNEY FOR THE BOARD

L. Sinckler, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 1954 to May 1956.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

The Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ) in October 2016.  A transcript is of record.

The Board notes that the Veteran's claims file has been rebuilt.  The record currently before the Board consists of electronic files contained in two databases (known as Virtual VA and the Veterans Benefits Management System (VBMS)).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2016).  38 U.S.C.A. � 7107(a)(2) (West 2014).

The appeal is REMANDED to the agency of original jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

Unfortunately, a remand is required in this case.  While the Board sincerely regrets the delay, the Veteran's claims must be remanded for further development in accordance with VA's duty to assist.  Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claims are afforded every consideration.

As noted, the RO was unable to locate the Veteran's original VA claim folder, so that file had to be "rebuilt."  Review of the available records shows that a September 2008 rating decision declined to reopen a claim for service connection for a right foot disability.  In so doing, the RO noted that an April 1995 rating decision had previously denied service connection for pes planus bilateral because the evidence of record showed the condition existed prior to service.  The Veteran was notified of this decision by letter dated April 7, 1995.  Evidence considered by the RO in the September 2008 rating decision included a Statement in Support of Claim received on May 6, 2008; a letter from the Veteran received May 19, 2008; and VA outpatient treatment records dated from April 12, 2007, to January 23, 2008.  The RO noted that the Veteran's May 2008 letter reported that he injured his left foot when he jumped out of a truck in 1955 and landed on a rock.  He was reportedly placed on crutches for about one month, however, there was no evidence of record of this incident.  The RO further noted that treatment records from Boston VAMC showed that the Veteran complained of foot pain due to arthritis and that the bottoms of his feet were painful in the arch region.

During his October 2016 Board hearing, the Veteran reported receiving treatment for his feet in 1957 at the VA medical facility in Jamaica Plain and at a VA medical facility from 1980-1990.  As noted above, at the time of the September 2008 rating decision the RO had obtained the Veteran's VA outpatient treatment records dated from April 12, 2007, to January 23, 2008, although these documents are no longer associated with the file.  Accordingly, on remand the RO should obtain the Veteran's complete VA treatment records, dated from 1957 forward.  Also, as the case must be remanded, an attempt should be made to obtain any available service treatment and service personnel records.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  Expedited handling is requested.)

1.  Make arrangements to obtain a complete copy of the Veteran's service treatment records, to include all clinical records, and his service personnel records.

2.  Make arrangements to obtain a complete copy of the Veteran's treatment records (to include any archived records) from the Boston VA Healthcare System, including from the Jamaica Plain and West Roxbury treatment facilities, dated from 1957 to the present.

3.  After the above development is completed, and any other development that may be warranted based on any additional information or evidence received (to include obtaining a VA examination, if warranted), readjudicate the claims on appeal.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2016).


series: legacy

judge_norm: MARK D HINDIN

disposition: granted

benefit: pension

disposition: denied

condition: psychiatric

condition: knee

disposition: remanded

text:
Citation Nr: 1721000
Decision Date: 06/09/17    Archive Date: 06/21/17

DOCKET NO.  11-23 669A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama

THE ISSUES

1.  Entitlement to nonservice-connected pension for the period prior to June 29, 2010.

2.  Entitlement to an initial compensable rating for bilateral hearing loss.

3.  Entitlement to an increased (compensable) rating for residuals of amputation, distal tip of left (non-dominant) middle finger through middle distal phalanx.

4.  Entitlement to an increased (compensable) rating for post-operative residuals of right inguinal herniorrhaphy.

5.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD)

6.  Entitlement to service connection for left knee disability, status post-arthroscopy.

7.  Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to PTSD.

8.  Entitlement to service connection for a liver disorder, including hepatitis C virus (HCV), status post-liver transplant.

REPRESENTATION

Appellant represented by:	Colin E. Kemmerly, Attorney

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

J.N. Moats, Counsel

INTRODUCTION

The Veteran served on active duty from June 1972 to July 1975.

This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  In pertinent part, a September 2009 rating decision granted service connection for bilateral hearing and assigned a 0 percent (noncompensable) rating, effective in December 2008; continued noncompensable ratings for the left middle finger amputation residuals and left inguinal herniorrhaphy; denied entitlement to service connection for PTSD, HCV, and nonservice-connected pension; and, determined new and material evidence was not received to reopen the left knee claim.  An April 2010 rating decision denied entitlement to service connection for OSA.  The Veteran perfected separate appeals of those determinations.

The Veteran appeared at a Board hearing via video conference in November 2014 before the undersigned.  A transcript of the hearing is associated with the record.

The Board remanded the issues on appeal for further development in February 2015.  The case has now been returned for appellate review.

In February 2017, the Veteran, through his attorney, submitted additional evidence for which he waived initial Agency of Original Jurisdiction (AOJ) review and consideration.  In light of the waiver, the Board may consider the evidence in the first instance.  See 38 C.F.R. � 20.1304 (2014).

In an October 2012 statement and at the Board hearing, the Veteran's representative specifically requested that pension benefits be awarded from the date of claim, December 4, 2008, until the Veteran received Social Security Administration (SSA) disability benefits on June 29, 2010.  Thus, the Board finds that the Veteran has limited his appeal to seeking entitlement to nonservice-connected pension benefits prior to June 29, 2010 and has been characterized as such on the front page of this decision.  See AB v. Brown, 6 Vet. App. 35, 39 (1993); Hamilton v. Brown, 4 Vet. App. 528 (1993).

The issues of entitlement to service connection for a liver disorder, and a psychiatric disability other than PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The Veteran served honorably for more than 90 days during a period of war; he was discharged under honorable conditions; he is permanently and totally disabled; and, he met the income and net worth requirements for pension from the date of claim from December 4, 2008 to June 29, 2010.

2.  From the date of award of service connection, the Veteran's service-connected bilateral hearing loss has resulted in no worse than level II hearing acuity in the right ear and level IV in the left ear.

3.  The residuals of amputation, distal tip of left (non-dominant) middle finger through middle distal phalanx are manifested by an absent distal digit of the left third finger without long finger amputation with metacarpal resection (more than one-half of the bone lost), long finger amputation without metacarpal resection at the proximal interphalangeal joint or proximal thereto, a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or extension limited by more than 30 degrees, or X-ray evidence arthritis.

4.  The post-operative residuals of right inguinal herniorrhaphy have not been productive of a recurrent hernia; the residual scar is not painful, unstable and does not cause functional impairment.

5.  The Veteran does not meet the diagnostic criteria for a diagnosis of PTSD.

6.  A left knee disability is not related to a disease or injury in active service.

7.  OSA is not related to a disease or injury in active service, to include as secondary to a service connected disease or disability.

CONCLUSIONS OF LAW

1.  From December 4, 2008 to June 29, 2010, the criteria for the award of nonservice-connected pension benefits have been met.  38 U.S.C.A. �� 1513, 1521 (West 2014); 38 C.F.R. �� 3.3, 3.23, 3.274, 3.666 (2016).

2.  From the date of award of service connection, the criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. �� 1155, 5107 (West 2014); 38 C.F.R. �� 3.321(b), Part 4, including �� 4.7, 4.85, Diagnostic Code 6100 (2016).

3.  For the entire appeal period, the criteria for a compensable rating for the Veteran's residuals of amputation, distal tip of left (non-dominant) middle finger through middle distal phalanx have not been met. 38 U.S.C.A. �� 1155, 5107; 38 C.F.R. �� 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5154 (2016).

4.  For the entire appeal period, the criteria for a compensable rating for the Veteran's post-operative residuals of right inguinal herniorrhaphy have not been met.  38 U.S.C.A. � 1155, 5107; 38 C.F.R. �� 3.102, 4.1, 4.114, 4.118, Diagnostic Codes 7805, 7338 (2016).

5.  The criteria for service connection for PTSD have not been met.  38 U.S.C.A. �� 1110, 1131, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309 (2016).

6.  The criteria for service connection left knee disability, status post-arthroscopy have not been met.  38 U.S.C.A. �� 1110, 1131, 5107; 38 C.F.R. � 3.303 (2016).

7.  The criteria for service connection for OSA have not been met.  38 U.S.C.A. �� 1110, 1131, 5107 (West 2014); 38 C.F.R. � 3.303 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R.        �� 3.102, 3.156(a), 3.159, 3.326(a) (2016).

As the Board's decision to grant nonservice-connected pension for the period prior to June 29, 2010 herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the VCAA and the implementing regulations.

With respect to the other issues on appeal, the Veteran has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Veteran has not been afforded an examination in connection with his claim for service connection for a left knee disability.   In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.

These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. � 5103A (d); 38 C.F.R. � 3.159(c)(4).

With respect to the third factor above, the United States Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79   (2006).

Specifically, the Veteran's service treatment records are silent as to any complaints, findings, or diagnosis of a left knee disability hypertension.  Further, as discussed further below, the Board finds the Veteran's statements concerning injuring his left knee in service to not be credible.  Moreover, the first post-service medical evidence of a diagnosis of a left knee disability is many years after service.  The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010).  Therefore, given the lack of any in-service incidents or any competent evidence indicating that a left knee disability may be linked to service, a VA examination or opinion is not necessary.

Moreover, the Board finds that there was substantial compliance with the Board remand directives.  A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order.  Stegall v. West, 11 Vet. App. 268 (1998).  Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required.  See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999).

In particular, in its prior remand, the Board directed the AOJ to associate all VA treatment records previously referenced in SOCs and SSOCs as well as any additional clinical records with the claims file, ensure any additional private records were obtained and request SSA records.  The AOJ was also directed to afford the Veteran VA examinations with respect to his hearing loss, left finger, right inguinal hernia and acquired psychiatric disorder.  VA treatment records dated to May 2016 were associated with VBMS as well as SSA records.  It does not appear that there are any outstanding private treatment records.  Further, the Veteran was afforded VA examinations in June 2016.  The Board finds that the VA examinations are adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe the Veteran's disabilities in detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).

In a February 2017 statement, the Veteran's representative argued that the AOJ failed to comply with the Board's prior remand as the June 2016 VA examiner who conducted the mental health examination did not review the claims file or evaluate the Veteran under the DSM IV criteria.  However, the examination report clearly shows that the Veteran's VBMS and Virtual VA electronic record, which encompass the claims file, was reviewed.  The Veteran's paper claims file is now included in those data bases.  There has been no allegation that any specific piece of evidence was not considered.  Moreover, in a June 2016 addendum opinion located in Virtual VA, the examiner clearly found that the Veteran did not meet the criteria for PTSD under the DSM-IV and offered a rationale for that opinion.  Accordingly, there has been substantial compliance with the Board remand directives and, therefore, no further remand is necessary.  See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008).

II.  Nonservice-connected Pension

Under the provisions of 38 U.S.C.A. � 1521, pension is payable to a Veteran who served for 90 days or more during a period of war; who meets certain net worth and income requirements; and, who is permanently and totally disabled due to nonservice-connected disabilities that are not the result of the Veteran's willful misconduct.

A veteran deemed disabled by the Commissioner of the Social Security Administration (SSA) for purposes of administering SSA benefits, is considered permanently and totally disabled for VA pension benefits purposes.  38 C.F.R. � 3.3(a)(3)(vi)(B)(2).

Here, the record clearly shows that the Veteran met the service requirement, having served honorably for more than 90 days during a period of war.

Moreover, the Veteran has been deemed disabled by SSA since November 19, 2008, prior to the date of claim for pension.  Significantly, he did not receive any income from SSA until June 29, 2010; nor did he have any other income during this period.  As such, the Veteran also met the income requirements prior to that date.  Under these facts, the Veteran currently meets the eligibility requirements for the award of non-service connected pension benefits from December 4, 2008 to June 29, 2010, and thus, entitlement to the benefit is granted.  38 U.S.C.A. �� 1513, 152; 38 C.F.R. �� 3.3, 3.23, 3.274, 3.666.

III.  Disability Ratings

Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the disability at issue.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as with respect to the hearing loss issue, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Id. at 126.

With respect to the remaining increased rating claim issues, while the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Hearing Loss

The present appeal involved the issue of entitlement to an initial compensable rating for his service-connected bilateral hearing loss.  The Veteran has generally asserted that his hearing loss warrants a compensable rating.

The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R.  � 4.85.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.

Table VIA is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R.
� 4.86.  38 C.F.R. � 4.85(c).

When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. � 4.86(a).

When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. � 4.86(b).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I, for essentially normal acuity; through XI, for profound deafness.  38 C.F.R. � 4.85, Tables VI, VII.

A zero percent evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears. 38 C.F.R.  � 4.85, Table VII, Diagnostic Code 6100.  A 10 percent evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is X and XI; where hearing in the better ear is II and hearing in the poorer ear is V to XI; where hearing in the better ear is III and hearing in the poorer ear is IV to VI; or where hearing in the better ear is IV and hearing in the poorer ear IV to V.  38 C.F.R. � 4.85, Table VII, Diagnostic Code 6100.  The next higher evaluation of 20 percent is provided where hearing in the better ear is III and hearing in the poorer ear is VII to XI; where hearing in the better ear is IV and hearing in the poorer ear is VI to VII; or where hearing in the better ear is V and hearing in the poorer ear V and VI.  38 C.F.R. � 4.85, Table VII, Diagnostic Code 6100.  Higher evaluations are available for more severe hearing loss.

Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Veteran was afforded a VA examination in July 2009.  Audiometric testing revealed the following:

HERTZ
1000
2000
3000
4000
RIGHT
20
45
65
70
LEFT
25
50
60
65

The puretone threshold average was 50 in both ears.  Speech audiometry revealed speech recognition ability of 92 percent in both ears.  The diagnosis was normal to severe sensorineural hearing loss in the right ear and normal to moderately severe sensorineural hearing loss in the left ear.

At the time of the July 2009 examination, the Veteran was shown to have an average puretone hearing loss of 50 decibels in the both ears, with 92 percent speech discrimination, which translates to a Roman numeral designation of I for each ear.  Thus, when applying Table VII, Diagnostic Code 6100, level I for the right ear and level I for the left ear equates to a zero percent disability evaluation.

Table VIA is not for application because the examination did not show that the Veteran's puretone threshold was 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), or that his puretone threshold was 30 or lower at 1000 Hertz and 70 or more at 2000 Hertz.  See 38 C.F.R. �� 4.85(c), 4.86(a).

At the Board hearing, the Veteran reported that his hearing was worse since the last examination and that he had just got new hearing aids.  He also stated that he had trouble hearing and understanding people in crowded situations

As the Veteran had testified that his hearing had deteriorated, the Board remanded the case to afford him another VA examination.  He was afforded another VA examination in June 2016.  The electronic record was reviewed.  At this time, audiometric testing revealed the following:

HERTZ
1000
2000
3000
4000
RIGHT
20
50
70
70
LEFT
25
55
65
65

The puretone threshold average was 53 in both ears.  Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 82 percent in the left ear.  The examiner observed that use of word recognition was appropriate.  The diagnosis was bilateral sensorineural hearing loss.  The examiner noted that the Veteran's hearing loss did impact the Veteran's ordinary conditions of daily life, including his ability to work, as he had to be looking at someone to tell what they were saying.  The Veteran reported that he read lips a lot.

At the time of the June 2016 VA audiological examination, the Veteran was shown to have an average puretone hearing loss of 53 decibels in the both ears, with 84 percent speech discrimination in the right ear and 82 in the left ear, which translates to a Roman numeral designation of II for the right ear and IV for the left ear.  Thus, when applying Table VII, Diagnostic Code 6100, level II for the right ear and level IV for the left ear still equates to a zero percent disability evaluation.

Again, Table VIA is not for application because the examination did not show that the Veteran's puretone threshold was 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), or that his puretone threshold was 30 or lower at 1000 Hertz and 70 or more at 2000 Hertz.  See 38 C.F.R. �� 4.85(c), 4.86(a).

VA treatment records have also been reviewed and considered.  While such records document hearing loss and the need for hearing aids, they do not provide audiological evaluations for rating purposes.

The Board now turns to whether an initial compensable rating is warranted for the Veteran's bilateral hearing loss.  The average puretone threshold findings from the July 2009 and June 2016 VA examinations, equate to a zero percent disability evaluation under Table VII, Diagnostic Code 6100.  Again, VA clinical records during this period do not address the severity Veteran's bilateral hearing loss.  There is simply no evidence to show that the Veteran met the rating criteria for a compensable rating at any point since the award of service connection.

The Board acknowledges the contentions put forth by the Veteran regarding the impact of his service-connected bilateral hearing loss on his daily activities.  However, while he can describe the effects on his activities, he is not competent to report findings for rating purposes, as the evaluation must be done by a state-licensed audiologist.  Further, the June 2016 VA examination report and the Veteran's statements, including his hearing testimony, discussed the functional effects of the Veteran's hearing loss disability.  Thus, the functional effects of the Veteran's hearing loss disability are contemplated by the rating criteria.  Doucette v. Shulkin, 28 Vet. App. 366 (2017); See Martinak v. Nicholson, 21 Vet. App. 447 (2007).

In sum, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign.  Lendenmann, 3 Vet. App. 345; 38 C.F.R.
� 4.85, Tables VI, VIA and VII, Diagnostic Code 6100.  Applying the VA audiological test results from the June 2009 and July 2016 VA audiological evaluations, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to an initial compensable rating for bilateral hearing loss.

The Board has considered the benefit of the doubt doctrine.  However, the preponderance of the evidence is against a higher initial rating for bilateral hearing loss at any point since the award of service connection.  Therefore, reasonable doubt does not arise and his initial rating claim must be denied.  38 U.S.C.A. � 5107; 38 C.F.R. �� 4.3, 4.7.

Residuals of Amputation, Distal Tip of left (non-dominant) Middle Finger through Middle Distal Phalanx

In his hearing testimony, the Veteran reported that he could not use the tip of his finger during cold weather.  It also throbbed during such weather.  He used his right hand as opposed to his left when working.

The Veteran's disability is rated under the diagnostic code for amputation of the long finger.  A 10 percent rating is assigned without metacarpal resection at the proximal interphalangeal joint or proximal.  A 20 percent rating is warranted for amputation of the long finger with metacarpal resection (more than one-half the bone lost) or proximal thereto.  38 C.F.R. � 4.71a, Diagnostic Code 5154.

The "amputation rule," provides that the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed.  38 C.F.R. � 4.68.

With respect to the Veteran's current December 2008 claim for an increased rating, he was afforded a VA examination in January 2009.  The claims file was reviewed.  The Veteran reported a residual nail that continued to grow in the area.  He also complained of a throbbing-type pain that occurred with cold weather.  No significant flare ups; however, he stated that he did have some decreased grip strength in regards to his left hand as well as some decreased dexterity.  He denied any alleviating factors or medication.  He also denied the use of any prosthetic or ambulatory devices and there was no current treatment.

On physical examination, the examiner noted a partial amputation of the distal aspect.  The Veteran still had a small remnant nail remaining.  There was no significant pain to palpation, swelling or tenderness of this area.  The Veteran was able to fully extend all fingers and was able to flex all fingers to the primary and secondary crease.  On repetitive range of motion testing times three of left middle digit, flexion of the MCP joint was 0-85 degrees flexion, of the PIP joint was 0-105 degrees, and flexion of the DIP joint was 0-60 degrees.  There was no pain noted with motion.  Further, the Veteran was able to make an excellent fist without gap space.  He was also able to oppose all digits to the thumb without difficulty.  Grip strength was equal and distal neurovascular status was intact.  The examiner diagnosed status post partial amputation distal tip left middle digit, though distal phalanx, well healed.  The examiner indicated that additional limitation of function due to flare-up could not be determined without resorting to mere speculation.  However, there was no discomfort or difficulty with range of motion testing, nor edema effusion, tenderness, deformities, weakness, fatigue or instability.

On remand, the Veteran was afforded additional VA examinations in June 2016.  The electronic record was reviewed.  The examiner who conducted the amputations examination observed amputation of the left long finger.  The examiner noted a scar on the distal aspect of the left middle digit.  The scar was 1.5 cm length time's .1 cm width.  However, the scar was not painful or unstable, had a total area equal to or greater than 39 square cm (6 square inches), or located on the head, face or neck.  There were no other significant diagnostic test findings or results.  The amputation did not impact his ability to work.  The June 2016 hand and finger examination showed that the Veteran again reported throbbing in cold weather.  The Veteran denied any flare-ups.  The Veteran also reported difficulty picking up objects utilizing the left middle digit.  Range of motion of the left hand was all normal.  There was no gap between the pad of the thumb and the finger.  There was also no gap between the finger and proximal transverse crease of the hand on maximal finger flexion.  Further, there was no pain with use of the hand or objective localized tenderness or pain on palpation.  The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion.  Pain, weakness, fatigability or incoordination did not significantly limit functional ability.  Hand grip was 5/5.  There was no muscle atrophy or ankyloses.  The examiner again noted that there was no impact on the Veteran's ability to perform any type of occupational task.  The examiner clearly stated that there were no functional limitations.

After considering the foregoing evidence, the Board finds that the Veteran is not entitled to a compensable rating for any period during the course of the appeal.  The record establishes that the Veteran's distal digit of the left middle finger was absent. The record does not establish, and the Veteran does not allege, that his amputation occurred at the proximal interphalangeal joint or proximal thereto with or without a metacarpal resection.  A compensable rating is therefore not warranted under Diagnostic Code 5154.

Moreover, the Board has considered the applicability of other potential diagnostic codes.  The record does not establish, and the Veteran has not alleged, a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible, or extension limited by more than 30 degrees.  The July 2016 VA examiner found that there was no gap between the thumb pad and the fingers.  Consideration of Diagnostic Code 5229 is therefore not warranted.  In addition, ankylosis of the long finger is not shown, and there is no ankylosis or limitation of motion of other digits of the left hand, therefore Diagnostic Codes 5216-5228 and 5230 do not apply.

It must also be considered whether an evaluation as amputation is warranted.  38 C.F.R. � 4.71a, Diagnostic Code 5227, Note.  However, none of the VA examiners in this case indicated that the function in the left long finger was so reduced that the Veteran would be equally well served by amputation, with the June 2016 VA examiner specifically finding that this was not the case.  VA treatment records are silent for any opinions indicating that the Veteran would be equally well served by amputation of the left long finger.  As such, the preponderance of the evidence is against a finding that a higher rating for the Veteran's left middle metacarpal fracture is warranted based on the criteria governing amputation of the long finger. 38 C.F.R. � 4.71a, Diagnostic Code 5154.

 In evaluating the Veteran's current level of disability, functional loss was considered.  38 C.F.R. �� 4.40, 4.45.  The medical evidence shows that the Veteran has complained of pain and decreased strength, which he is competent to report.  Jandreau, 492 F.3d 1372.  However, the June 2016 VA examiner found no further loss of function or range of motion after repetitive testing due to fatigue, incoordination, weakness or any other factors, nor that these additional factors so reduced functional of the left long finger that the Veteran would be equally served by amputation.  Significantly, the examiner clearly found that there were no functional limitations.  As such, the Board finds that the VA medical opinion outweighs the Veteran's statements regarding additional functional loss due to pain, weakness, fatigue, or other factors.  38 C.F.R. �� 4.40, 4.45, 4.59.

The Board recognizes that the Veteran has a scar.  However, as there is no objective evidence shows that the Veteran's scar is painful, unstable, or a total area greater than 39 square cm., a separate, compensable rating for his scar is not warranted.   See 38 C.F.R. � 4.118, Diagnostic Codes 7801-7805.

The Veteran is competent to report observable symptoms.  Layno v. Brown, 6 Vet. App. 465 (1994).  Nevertheless, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms.  The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.

The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected residuals of amputation, distal tip of left middle finger; however, the Board finds that her symptomatology has been stable throughout the appeal period.  Therefore, assigning staged ratings for such disability is not warranted.

In sum, the Board finds a compensable rating for residuals of amputation, distal tip of left (non-dominant) middle finger through middle distal phalanx is not warranted.  In reaching this conclusion, the Board has considered the applicability of the   benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against other higher or separate ratings, that doctrine is not applicable.  See 38 U.S.C.A. � 5107 (b); 38 C.F.R. �� 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Post-Operative Residuals of Right Inguinal Herniorrhaphy

The Veteran is also seeking a compensable rating for post-operative residuals of right inguinal herniorrhaphy.  Again, the Veteran has generally asserted that his disability warrants a compensable rating.  At the Board hearing, he testified that his hernia scar itched "real bad" and he also underwent a recent hernia surgery.

The Veteran's post-operative residuals have been rated under Diagnostic Codes 7805-7338.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  The additional code is shown after the hyphen.  Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely-related disease or injury, in which both the functions affected and the anatomical localization and symptomatology are closely analogous.  38 C.F.R. � 4.20 (2016).

Under Diagnostic Code 7805, any disabling effect(s) of scars not considered in a rating provided under diagnostic codes 7800-7804 should be evaluated under an appropriate diagnostic code.

In pertinent part, the Board also notes that under Diagnostic Code 7804 (scar(s), unstable or painful), a 10 percent evaluation is assigned for one or two scars that are unstable or painful.  A 20 percent evaluation is assigned for three or four scars that are unstable or painful.  A 30 percent evaluation is assigned for five or more scars that are unstable or painful.

Note (1) to Diagnostic Code 7804 states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.

Under Diagnostic Code 7338 (hernia, inguinal), a 0 percent evaluation is assigned for small, reducible hernia, or without true hernia protrusion, or for not operated but remediable hernia.  A 10 percent evaluation is assigned for postoperative recurrent hernia, readily reducible and well supported by truss or belt.  A 30 percent evaluation is warranted for small, postoperative recurrent hernia or unoperated irremediable hernia, not well supported by truss or not readily reducible.  A 60 percent evaluation is warranted for large, postoperative, recurrent hernia, not well supported under ordinary conditions and not readily reducible, when considered inoperable.

The Veteran was afforded a VA examination in January 2009.  It was noted that he was unemployed.  With respect to his hernia, he reported that there had been no history of recurrence.  His scar area did itch, was irritated and slightly rough in certain areas.  There was no current treatment.   On physical examination, there was no hernia present.  There was a well-healed scar in the right lower quadrant.  It was 10cm in length and 2 cm at the widest.  It was slightly hypopigmented.  There was no pain to palpation.  There was no adherence to underlying tissue, ulcerations or skin breakdowns.  Skin texture was normal and the scar appeared stable.  There was no elevation or depression.  The scar was superficial.  There was no inflammation, edema or keloid formation.  Further, there was no loss of function or motion.  The examiner diagnosed scar, status post right inguinal hernia repair without significant residuals or evidence of recurrence.

Private and VA treatment records showed that in 2013, the Veteran had an umbilical hernia that was reducible with generalized tenderness.  He subsequently had surgical repair in May 2014.  However, these records are silent with respect to any findings pertaining to his service-connected inguinal hernia.

As medical records associated with the record as well the Veteran's hearing testimony showed that he underwent surgery for repair of an umbilical hernia in 2014, in its prior remand, the Board found that an examination was needed to determine if there was any relationship to the existing service-connected inguinal herniorrhaphy residuals.

The Veteran was afforded a VA examination in June 2016.  The examiner diagnosed an inguinal hernia, found in 1974 and a ventral hernia, found in 2014.  The Veteran reported an inguinal hernia while on active duty, but denied any recurrence.  However, he did have a scar that itched at times.  The history of umbilical hernia began in 2013 and again there was no history of recurrence.  Medical records note surgical repair of the ventral hernia in May 2014.  On physical examination, the examiner found no inguinal hernia and no indication for a supporting belt.  With respect to the ventral hernia, the examiner found a healed postoperative ventral hernia repair.  The examiner opined that the Veteran did have a well-healed surgical scar in the right lower quadrant of the abdomen that caused no loss of function or motion.  He also observed that the umbilical hernia repair in May 2014 was a completely separate medical entity and not related to the right inguinal hernia repair during service.

As the June 2016 VA examiner clearly found that the May 2014 umbilical hernia repair was not related to the service-connected post-operative residuals of right inguinal herniorrhaphy and found it to be a separate disorder; there is no basis for awarding a higher or separate rating based on any residuals of the Veteran's umbilical hernia that was repaired in 2014.

Moreover, the post-operative residuals of right inguinal herniorrhaphy do not meet the criteria for a compensable disability rating.  Neither of the VA examiners noted a hernia on examination; therefore a higher rating under Diagnostic Code 7338 for an inguinal hernia is not warranted.

Likewise, as there is no objective evidence that shows that the Veteran's scar is painful, unstable, or a total area greater than 39 square cm, or causes any loss of function or impairment, a compensable rating for his scar under 38 C.F.R. � 4.118, Diagnostic Codes 7801-7805 is also not warranted.

Again, the Board has carefully reviewed and considered the Veteran's statements regarding the severity of his post-operative residuals of right inguinal herniorrhaphy.  Nevertheless, the Board finds that the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms.  The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.

The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected post-operative residuals of right inguinal herniorrhaphy; however, the Board finds that his symptomatology has been stable throughout the appeal period.  Therefore, assigning staged ratings for such disability is not warranted.

The preponderance of the evidence is against the Veteran's claim for a compensable rating.  The benefit-of-the-doubt rule does not apply and entitlement to a compensable disability rating for post-operative residuals of right inguinal herniorrhaphy is denied.  See 38 U.S.C.A. � 5107 (b); 38 C.F.R. �� 3.102; 4.3 (2014); Gilbert, 1 Vet. App. at 55.

TDIU

The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  However, in the instant case, although the Veteran has not worked during the course of the appeal, he has not asserted, nor there other evidence, that his service-connected disabilities on appeal alone render him unemployable.  Rather, the evidence shows that the Veteran is not able to work due to nonservice-connected disabilities.  Accordingly, there is no need for further analysis with respect to this matter.

IV.  Service Connection Claims

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. � 1112; 38 C.F.R. � 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table).

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses and arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A.  �� 1101, 1112, 1137; 38 C.F.R. �� 3.307, 3.309.

Alternatively, when a disease at 38 C.F.R. � 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. � 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. � 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. � 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. � 3.310(b).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

An Acquired Psychiatric Disorder, to include PTSD

The Veteran contends that he has PTSD is due to in-service stressors of being attacked by two locals with knives while stationed in Thailand and the traumatic removal of the nail and distal tip of this third digit of the left hand after his finger was caught in an aircraft chock.

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 claimed in-service stressor occurred.  See 38 C.F.R. � 3.304(f).

For cases certified to the Board prior to August 4, 2014, such as this case, the diagnosis of PTSD must be in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. � 4.125(a) (2015); Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45 ,093 (Aug, 4, 2014) (Applicability Date) (updating 38 C.F.R. � 4.125 to reference DSM-V).

VA has relaxed the requirements for credible supporting evidence for stressors based on combat, personal assault, prisoner of war status, or fear of hostile military or terrorist activity.  38 C.F.R. � 3.304(f)(2)-(5).  The outcome in this case, turns, not on the credible supporting evidence of the stressor; but on whether the Veteran meets the criteria for a diagnosis of PTSD.

Service treatment records are silent with respect to any findings, complaints or diagnoses pertaining to a psychiatric disorder.  Importantly, a June 1975 service examination prior to discharge showed that the Veteran was clinically evaluated as psychiatrically normal.  In his contemporaneous medical history, the Veteran expressly denied frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort.

The Veteran was afforded a VA examination in August 2009.  The Veteran reported that he did not seek out any psychiatric treatment in the military.  He did come for drug and alcohol treatment at the VA in the 1980s.  The Veteran completed a Trauma Symptoms Inventory as part of this evaluation.  However, he produced an invalid profile.  He endorsed numerous atypical responses and his overall pattern would not be consistent with chronic PTSD.  The examiner continued that there was no direct evidence that his drug and alcohol abuse were related to his military service or an effort to cope with it.  The examiner diagnosed cocaine dependency, in remission, alcohol dependency, in remission and marijuana abuse, in remission.  The examiner concluded that there was no objective finding of PTSD.  The examiner continued that many of the Veteran's symptoms could be accounted for by the Veteran's long history of alcohol and drug abuse.  There was no direct evidence that the Veteran suffered from any psychiatric symptoms as a result of his military service.

VA treatment records show that the Veteran presented in November 2008 with complaints of PTSD symptoms.  A December 2008 mental health evaluation showed a diagnosis of cocaine dependence, mood disorder and nicotine dependence.  However, a January 2009 clinical record with another examiner showed an assessment of PTSD and bipolar disorder.  These diagnoses appear to be based on the Veteran's report of a history of those disabilities.  Follow up records continue to show an assessment of PTSD (non-combat).  Private treatment records also show and assessment of PTSD.

In light of the ongoing diagnosis of PTSD, on remand, the Veteran was afforded another VA examination in June 2016 to specifically determine whether he met the criteria for PTSD diagnosis.  After reviewing the electronic claims file and examining the Veteran, the examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD under DSM-5 criteria.  The Veteran was diagnosed with adjustment disorder with depressed mood and anxiety.

The examiner found that this diagnosis was related to his recent liver transplant, and chronic health condition.  The examiner noted the Veteran's stressor of a fight in which he was "superficially cut," which minimally met the criteria, though no serious injury occurred.  The examiner also noted the stressor of the amputation of the tip finger.  The examiner found that this stressor was also adequate to support a diagnosis of PTSD.  The examiner observed that on face-valid self-report measures, the Veteran reported that his worst event had been the liver transplant for which he waited for over two years.  However, this stressor did not meet Criterion A for a diagnosis of PTSD. The symptoms he reported during the clinical interview also did not meet criteria for PTSD.

Therefore, based on all the evidence, the examiner opined that it was less likely that the Veteran at any time met the full criteria for PTSD as a result of either the in-service incident that resulted in partial amputation of the tip of the left 3rd finger, or the Veteran's reported armed assault by two Thai nationals.

The examiner continued that the PTSD diagnosis reflected in the Veteran's treatment records appeared to be in error as his symptoms did not meet full criteria for a diagnosis of PTSD, and there was no objective evidence to support PTSD symptoms.  The examiner found the diagnoses of mood disorder and substance use disorder to have been accurate at the time; but to have been less likely due to either of the incidents previously described.

The Veteran did not report clinically significant re-experiencing symptoms associated with either of these incidents.  The Veteran reported symptoms consistent with Adjustment Disorder with Depressed Mood and Anxiety, related to his recent liver transplant and chronic health conditions.  Thus, the Veteran's diagnosed Adjustment Disorder with Depressed Mood and Anxiety were less likely incurred in or caused by anxiety during service.  This finding was based on the clinical interview with testing, time-line of treatment, service treatment records, and treatment notes.  Treatment notes have reflected the inclusion of a personality disorder and, or maladaptive personality traits many times throughout his treatment, and it seems that many of his poor social behaviors or due to that disorder rather than any other mental health diagnoses.

In an addendum opinion located in Virtual VA, the same examiner also found that it is less likely that the Veteran at any time met full criteria for PTSD based on DSM-IV criteria as a result of either the in-service incident that resulted in partial amputation of the tip of the left 3rd finger, or the Veteran's reported armed assault by two Thai nationals.  The examiner repeated his previous conclusions with regard to the PTSD, Mood Disorder and Substance Use disorders reported in the earlier treatment records.  The Veteran did not report clinically significant re-experiencing symptoms associated with either of these incidents (persistent re-experiencing symptoms is a diagnostic criterion B of the DSM-IV. Without meeting this criteria, PTSD cannot be diagnosed).  The examiner again opined that the Veteran's current diagnoses were not related to service and that the Veteran's social behaviors were due to his personality disorder as opposed to other mental health diagnoses.

The Board notes that post-service evidence reflects that the Veteran has been assessed as having a personality disorder, which is not a disease for which service connection may be granted.  38 C.F.R. �� 3.303(c), 4.9.  The Board notes that service connection may be granted for disability superimposed on a personality disorder.  See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); and VAOPGCPREC 82-90.  Here, service connection is potentially available for the superimposed acquired psychiatric diagnoses noted above.

Service connection for PTSD; however, is not warranted as the evidence fails to show that the Veteran meets the diagnostic criteria for a diagnosis of that disorder.  In this regard, the June 2016 VA psychiatrist found on examination that the Veteran did not meet the diagnostic criteria under DMS IV or V for PTSD under the criteria in effect at those times.  The examiner was informed of the Veteran's confirmed in-service stressors and the reported personal assault; and was directly asked to determine whether the Veteran met the criteria for PTSD based on such stressors, but still determined that the Veteran did not meet the diagnostic criteria for PTSD.

Rather, the examiner diagnosed other acquired psychiatric disorders.  Given that the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examinations to be sufficient for appellate review and of high probative value with respect to whether the Veteran suffers from PTSD.

As noted, the Veteran's treatment providers had previously indicated that the Veteran had PTSD.  However, these findings are less probative than those of the VA examiner.  Importantly, none of the treatment providers discussed what PTSD criteria had been met in order to render such diagnosis.  The June 2016 VA examiner found that the PTSD diagnosis reflected in the Veteran's treatment records appears to be in error as his symptoms did not meet full criteria for a diagnosis of PTSD, and there was no objective evidence to support PTSD symptoms.  The examiner did discuss the diagnostic criteria in detail, considered a complete and accurate history and provided a detailed analysis.  In light of the above; the Board must conclude that the most probative evidence is against a finding that the Veteran has ever met the criteria for a diagnosis of PTSD.

The Veteran is competent to describe his psychiatric symptoms.  However, in the instant case, a licensed medical professional has determined that the Veteran does not meet the criteria for PTSD, which is an inherently medical question.  Rather, medical professionals have diagnosed the Veteran with other psychiatric disorders.  Importantly, the Veteran is not competent to render a diagnosis of PTSD as medical expertise is required to ascertain and diagnosis a certain psychiatric disability and the Veteran, is not shown to have such experience.  In short, service connection is denied for PTSD, because there is no diagnosis of record that is adequate for VA compensation purposes.

The preponderance of evidence is against the claims for service connection for PTSD.  As the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. � 5107(b).

Left Knee Disability

At the Board hearing, the Veteran testified that he injured his left knee while in technical training, and was placed on crutches as part of his treatment.  Although he did not specifically testify that he had continuous symptomatology after active service, he did testify that he continued to have episodes of symptoms afterwards.

Service treatment records dated in September 1972 note the Veteran's complaint of a right knee injury while playing football.  An X-ray was negative.  The Veteran was issued crutches, and was excused from marching for two weeks.  There was no mention of left knee involvement.  On his June 1975 Report of Medical History for his separation from service, the Veteran did not indicate any history of left knee symptoms or problems.  The June 1975 Report of Medical Examination for Separation reflects that the lower extremities were assessed as normal.

Post-service private medical evidence documents that a left partial meniscectomy was performed in 1988.  The private records reflect that the Veteran had hurt his left knee playing softball, and there was no reported history of an in-service injury.   Private records also show that the Veteran underwent a subsequent left knee procedure in October 2012.

The Veteran is competent to report an in-service injury and ongoing symptoms; however, his current reports of injuring his left knee in service as well as ongoing symptoms since service are not credible.  While documenting an injury to the right knee, service treatment records during active duty are silent with respect to any findings, complaints or diagnoses of a left knee.  Moreover, no chronic disorder was diagnosed at that time of his discharge in July 1975.

The Veteran expressly denied any knee symptoms in his contemporaneous medical history.  The contemporaneous evidence is silent with respect to any left knee disability until many years after active duty.  Further, when the Veteran first sought treatment for his left knee in 1988, he did not report any in-service injury or ongoing symptoms dating back to that time.

These inconsistencies weigh against his later statements of pertinent symptoms since service.  In sum, the Veteran's current statements, made in connection with his pending claim for VA benefits, that he injured his left knee in service and has experienced continuous symptoms since service, are inconsistent with the contemporaneous evidence.

The Board is cognizant that, while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a claimant's lay evidence; the lack of such records does not, in and of itself, render lay evidence incredible.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006).  The Board, however, finds in the instant case that the combination of the Veteran's express denial of any symptoms on his discharge medical history, the lack of medical evidence for many years after service, and the fact that he was silent with respect to any symptoms related to service when he first sought treatment in 1988 to be persuasive evidence against his claim.  Accordingly, while his contentions have been carefully considered, his statements are outweighed by the remaining evidence of record.

Additionally, there is no showing of left knee arthritis to a compensable level within one year of discharge so the service incurrence of such may not be presumed.  A compensable level of arthritis would require X-ray evidence of the disease, and there have been no reports of X-ray examination of the left knee in the year after service.  See 38 C.F.R. � 4.71a, Diagnostic Code 5003 (2016).

The preponderance of the evidence is against the Veteran's claim for a left knee disability.  As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. � 5107(b).

Obstructive Sleep Apnea

The Veteran has asserted that he has OSA secondary to PTSD.  Because service connection has been denied for PTSD, a secondary service connection theory could not serve as a basis for service connecting OSA.  Cf. 38 C.F.R. � 3.310.

Service treatment records are silent with respect to any findings, complaints or diagnoses pertaining to a sleep disorder.  On his June 1975 Report of Medical History for his physical examination for separation, the Veteran expressly denied frequent trouble sleeping and was silent with respect any other sleep problems.  The June 1975 medical examination also was silent with respect to any findings of a chronic sleep disorder.

Post-service VA medical evidence shows that the Veteran was diagnosed with OSA based on a sleep study in October 2009.

The Veteran was afforded with a VA examination in June 2016.  The electronic record was reviewed.  The Veteran reported being diagnosed with OSA in 2010. He noticed difficulty sleeping for many years, but was unable to pin point exact date.  The examiner opined that the claimed condition was less like than not incurred in or caused by the claimed in-service injury, event or illness.  The examiner rationalized that available service treatment records revealed no diagnosis or treatment for sleep related complaints during military service.  The examiner elaborated that the preponderance of medical evidence and expertise reveals the proximate cause of OSA to be a developmentally narrow oropharyngeal airway, often with superimposed elevation of BMI (creating encroachment of airway with fatty soft tissues) and/or natural aging (encroachment of airway with floppy soft tissues).  These facts indicate that the Veterans OSA is less likely than not caused by, related to or aggravated by acquired mental health conditions.

Based on the evidence of record, the Board must find that the preponderance of the evidence is against service connection for OSA on a direct basis.  Again, service treatment records are silent with respect to any chronic sleep disability.  Importantly, the first medical evidence of OSA is in 2009, many years after the Veteran's discharge from active duty service.  A lengthy period without evidence of treatment may also be viewed as evidence weighting against the Veteran's claim.  See generally Maxson v. Gober, 230 F.3d 1330 (Fed.Cir. 2000).  Moreover, the VA examiner clearly found that the OSA was not related to service and offered a detailed rationale for such findings.  Moreover, there is no lay or medical evidence of pertinent symptoms since service.  See Walker.

Importantly, the Veteran has primarily asserted that his OSA is secondary to his psychiatric disability.  Nevertheless, as service connection for a psychiatric disability has been denied, there is no basis for the award of service connection for the Veteran's OSA as secondary to such disorder.  38 C.F.R. � 3.310.

As the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. � 5107(b).

ORDER

From December 4, 2008 to June 29, 2010, the criteria for the award of nonservice-connected pension is granted.

An initial compensable rating for bilateral hearing loss is denied.

A compensable rating for residuals of amputation, distal tip of left (non-dominant) middle finger through middle distal phalanx is denied.

A compensable rating for post-operative residuals of right inguinal herniorrhaphy is denied.

Service connection for an acquired psychiatric disorder, to include PTSD, is denied.

Service connection for a left knee disability is denied.

Service connection for obstructive sleep apnea is denied.

REMAND

The Veteran asserts that his current liver disorder, including HCV, is due to air gun shots received during basic training.  At the Board hearing, he testified that he had no history of IV drug use or tattoos.  He also never had any blood transfusions.  He had a liver transplant in June 2014 due to hepatitis C.

Risk factors for hepatitis C include intravenous drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of  percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or razor blades.  VBA Letter 211B (98-110) November 30, 1998.  Additionally, a June 2004 VA Fast Letter addresses the alleged relationship between immunization with air gun injectors and hepatitis C infection.  VBA Fast Letter (04-13) June 29, 2004.  Specifically, that Fast Letter notes that transmission of the hepatitis C virus with air gun injections is 'biologically plausible,' notwithstanding the lack of any scientific evidence documenting such relationship.

Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. � 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  The threshold for finding a link between current disability and service is low.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83.

The Veteran has not been afforded a VA examination with respect to this matter.  In light of the Veteran's assertions and the June 2004 Fast Letter, the Board finds that a VA examination is necessary to address whether the Veteran's liver disorder is related to service, to include air gun injections.  See McLendon.

Because there is evidence that acquired psychiatric disabilities other than PTSD may be related to the liver disorder; the psychiatric disability claim is inextricably intertwined with the liver disorder claim.

Accordingly, the case is REMANDED for the following actions:

1.  The Veteran should be afforded a VA examination to determine the most likely causes of the current hepatitis C.

The electronic record must be made available to the examiner for review.

The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has current livor disorder is due to service, to include air gun shots received during basic training (for purposes of this opinion his reports should be deemed competent and credible)

The examiner should provide reasons for the opinions that take into account the Veteran's reports.

The absence of supporting treatment records is not a sufficient reason, by itself, for rejecting the Veteran's reports.

If the examiner cannot provide an opinion without resort to speculation, the examiner must provide reasons why this is so, and whether there is additional evidence that would permit the necessary opinion to be provided.

2.  If any benefit sought on appeal remains denied, a supplemental statement of the case should be issued.  Thereafter, the case should be returned to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs