CORNEAL DISEASE INCLUDING SCARS OPACITIES

KELLI A. KORDICH · 2024 · Case ID: A24067420

DENIED

Summary

The veteran, who served in the Army from July 1981 to June 2006, appeals the denial of service connection for bilateral dry eye syndrome, acid reflux disorder, sleep apnea, bilateral hearing loss, and PTSD. The Board granted readjudication for the dry eye syndrome claim due to new evidence, specifically a September 2023 army community hospital treatment record noting dry eyes. However, the Board found the evidence against service connection, noting that while diagnosed in service, the condition was unremarkable in later VA exams and the veteran's lay assertion of Iraq-related dry eye was not medically supported. For acid reflux, the Board acknowledged post-service treatment but found no in-service event or manifestation, and the claim of secondary connection to depression was not supported by sufficient evidence. Sleep apnea was denied as the veteran had no in-service diagnosis or treatment, and was only diagnosed post-service over a decade after separation. Bilateral hearing loss was denied due to lack of objective findings meeting VA disability criteria in multiple audiograms, despite veteran's complaints and a single mention of sensorineural hearing loss in a treatment record. PTSD was denied due to lack of a DSM-5 diagnosis in service treatment records, post-service records, or the VA examination, despite the veteran's claims of combat stressors and a lay statement from his ex-wife.

Rationale

No evidence of currently diagnosed disability in service.; Evidence against finding current dry eye syndrome incurred during service.; Evidence against finding dry eye syndrome etiologically related to service (Iraq sun exposure).; Lay assertions of etiology not competent medical evidence.; VA examiner's opinion given more weight.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200325-77883

Full Decision Text

Citation Nr: A24067420
Decision Date: 10/21/24 Archive Date: 10/21/24

DOCKET NO. 200325-77883
DATE: October 21, 2024

ORDER

New and relevant evidence has been received, and readjudication of the previously denied claim for service connection for bilateral dry eye syndrome is granted.

Entitlement to service connection for bilateral dry eye syndrome is denied.

Entitlement to service connection for an acid reflux disorder is denied.

Entitlement to service connection for sleep apnea is denied.

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for PTSD is denied.

FINDINGS OF FACT

1. A July 2013 rating decision denied service connection for bilateral dry eye syndrome because the evidence did not show a currently diagnosed disability.

2. The Veteran did not submit new and material evidence or file a notice of disagreement within the one-year appeal period; therefore, the July 2013 rating decision is final.

3. New evidence received since the July 2013 rating decision is relevant to the claim for service connection for dry eye syndrome, as it tends to prove or disprove a matter at issue.

4. The Veteran's currently diagnosed dry eye syndrome did not manifest during service or for years thereafter and is not otherwise etiologically related to his active service.

5. The Veteran's acid reflux disorder did not manifest during service or for years thereafter and is not otherwise etiologically related to his active service or any service-connected disability.

6. The Veteran's sleep apnea did not manifest during service or for years thereafter and is not otherwise etiologically related to his active service.

7. The Veteran does not have a current hearing loss disability as defined by VA regulation.

8. The Veteran does not have a diagnosis of PTSD under the DSM-5.

CONCLUSIONS OF LAW

1. The criteria for readjudication of the claim for service connection for bilateral dry eye syndrome have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.2501.

2. The criteria for service connection for bilateral dry eye syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for an acid reflux disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

4. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

6. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1981 to June 2006.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2019 and July 2019 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

By way of history, a March 2019 rating decision continued the denial for service connection for bilateral dry eye syndrome because the evidence submitted was not new and relevant, denied service connection for acid reflux, and denied service connection for sleep apnea syndrome. In the March 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On January 9, 2024, the Veteran withdrew the hearing request. Therefore, for these issues, the Board may only consider the evidence of record at the time of the March 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued
sleep apnea syndrome. In the March 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On January 9, 2024, the Veteran withdrew the hearing request. Therefore, for these issues, the Board may only consider the evidence of record at the time of the March 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801.

A July 2019 rating decision denied service connection for an acquired psychiatric disorder to include anxiety, depression, and PTSD and denied service connection for bilateral hearing loss. Therefore, for these issues, the Board may only consider the evidence of record at the time of the July 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801.

In October 2021, the Veteran filed a Supplemental Claim seeking service connection for depressive disorder, and in response to the Supplemental Claim, the AOJ issued a February 2022 rating decision granting service connection for depressive disorder due to chronic pain syndrome with major depressive-like episode (previously evaluated as acquired psychiatric disorder to include anxiety and depression) as secondary to a service-connected left knee disability. Because the Board Appeal was filed first, and was not withdrawn, the Supplemental Claim should not have been accepted, and the decision should not have been issued; however, the Board will not disturb it. As the Veteran specifically indicated on his March 2020 VA Form 10182 that he disagreed with the denial of service connection for PTSD and the Veteran has already been granted service connection for an acquired psychiatric disorder other than PTSD, the Board will adjudicate the present claim as one for entitlement to service connection for PTSD.

In December 2023 and January 2024, the Veteran filed a Supplemental Claim seeking service connection for gastroesophageal reflux disease. In response, the AOJ issued a January 2024 rating decision confirming and continuing the previous denial of service connection for acid reflux. Because the Board Appeal was filed first, and was not withdrawn, the Supplemental Claim should not have been accepted, and the decision should not have been issued. The Board will proceed with adjudication of the claim as if the spurious decision had not been issued.

Finally, in a May 2024 Informal Hearing Presentation, the Veteran's representative stated that the Veteran waived initial AOJ review of any new evidence "as long as any appealed issue can be granted; however, he does not waive review for any evidence for an issue that cannot be granted and requests remand for additional development of those issues rather than allowing them to be denied." The Board points out that the representative did not identify any pre-decisional duty to assist error upon which the Board could remand, and as explained above, the Board cannot consider any evidence outside of the evidentiary window.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Whether new and relevant evidence has been received to allow readjudication of the previously denied claim for service connection for bilateral dry eye syndrome.

The Veteran is seeking readjudication of his previously denied claim for service connection for bilateral dry eye syndrome. He asserts that he has dry eye syndrome that was incurred during his service in Iraq.

Under the Appeals Modernization Act
VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Whether new and relevant evidence has been received to allow readjudication of the previously denied claim for service connection for bilateral dry eye syndrome.

Under the Appeals Modernization Act (AMA), when a claim has been previously disallowed it may not thereafter be readjudicated, unless the veteran submits a supplemental claim along with new and relevant evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.2501. New evidence is evidence that was not previously part of the actual record before agency adjudicators at the time of the prior denial. 38 C.F.R. § 3.2501(a)(1). Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Id.

In the March 2019 rating decision on appeal, the AOJ determined that new and relevant evidence had not been received and denied readjudication of the claim for service connection for bilateral dry eye syndrome. The AOJ previously denied the claim in a July 2013 rating decision because the evidence did not show a currently diagnosed disability.

The pertinent evidence of record at the time of the July 2013 rating decision consisted of the Veteran's service treatment records, VA treatment records, army community hospital treatment records, a November 2006 VA general medical examination report, a June 2013 VA eye examination report, and a September 2012 lay statement from the Veteran.

Evidence received since the July 2013 rating decision includes updated VA treatment records and army community hospital treatment records. In January 2024, after he withdrew his Board hearing request, the Veteran submitted a copy of VA and army community hospital treatment records, which included a September 2023 army community hospital treatment record that noted his problem list/past medical history included dry eyes. The treatment record documented an assessment of dry eyes and noted that the requested refill was entered for Refresh eye drops, which the Veteran used as needed.

Here, the Board finds the September 2023 army community hospital treatment record both new and relevant. This evidence is new as it was not previously part of the actual record before agency adjudicators at the time of the July 2013 rating decision, and the evidence is relevant to the claim because it tends to prove or disprove a matter at issue in the claim, in this case, a currently diagnosed disability. As new and relevant evidence has been received, the claim for service connection for bilateral dry eye syndrome will be readjudicated.

Service Connection

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).

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence showing that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995).

In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F
b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995).

In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.

Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2026. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are two types of qualifying chronic disabilities: (1) an undiagnosed illness, and (2) a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2).

1. Entitlement to service connection for bilateral dry eye syndrome.

The Veteran contends that he has dry eye syndrome that was incurred during his service in Iraq due to the sun piercing his eyes. See March 2020 VA Form 10182.

The Veteran's service treatment records (STRs) reflect that in September 1982, he reported having battery acid in his eyes for 5 minutes. He reported no loss of vision or blurriness, and the assessment was an acid burn. A November 1990 STR noted that the Veteran reported having irritation in his left eye for 1 day. He felt a "scratchy feeling inside." The assessment was conjunctivitis.

On a January 2006 post-deployment health assessment, the Veteran reported experiencing redness of eyes with tearing and dimming of vision.

The Veteran's March 2006 Report of Medical Examination at retirement did not document any abnormalities of the eyes. On an accompanying Report of Medical History, the Veteran answered "yes" to experiencing eye disorder or trouble and to experiencing loss of vision. The examiner indicated that he had recently received glasses for near-sightedness.

A June 2006 army community hospital treatment record documented the Veteran's report that his eyes felt like they were draining. He reported this bothered him particularly when he was out in the sunlight, and the right eye bothered him more than the left eye. He reported he had been using Visine eye drops, and that he had been seen in the eye clinic in January or February and prescribed eyeglasses with tinted lenses. The assessment was dry eye syndrome.

A November 2006 VA general medical examination noted that the Veteran did not claim any eye/vision conditions, and none were found other than presbyopia (loss of near vision) which was normal for his age. His systems review was negative for eye/vision problems other than needing reading glasses.

October 2007 and February 2011 army community hospital treatment records noted the Veteran's problem list included dry eye syndrome.

In a September 2012 statement, the Veteran reported that he used over the counter Visine or Clear Eye drops daily for his bilateral dry eye syndrome.

A December 2012 VA treatment record noted that the Veteran
January or February and prescribed eyeglasses with tinted lenses. The assessment was dry eye syndrome.

October 2007 and February 2011 army community hospital treatment records noted the Veteran's problem list included dry eye syndrome.

In a September 2012 statement, the Veteran reported that he used over the counter Visine or Clear Eye drops daily for his bilateral dry eye syndrome.

A December 2012 VA treatment record noted that the Veteran reported experiencing blurry vision and asked for an optometry referral. In March 2013, he underwent an eye consultation, and the note did not mention any reports of dry eye or a diagnosis of dry eyes or dry eye syndrome.

A March 2013 army community hospital treatment record noted the Veteran's chronic problem list included dry eye syndrome.

In June 2013, the Veteran was afforded a VA eye conditions examination, and the examiner reported the Veteran did not have an eye disorder. The examiner noted that the Veteran complained of dry eyes and attributed this dryness to time spent in Iraq. The examiner explained that living in a low humidity environment, such as the desert conditions of Iraq, can exacerbate symptoms of dry eyes, but there is no evidence to support the contention that being in low humidity environment can cause dry eye disease (dysfunction of and/or loss of accessory lacrimal glands). The examiner explained that dry eye sensation was very common in adults, and that the Veteran had no evidence of dry eye sequelae, such as corneal or conjunctival staining from loss of epithelial cells from chronic dry eye. Additionally, dry eye testing indicated normal basal tear production. The examiner also stated that a February 2006 military optometry exam did not mention dry eyes.

In a July 2013 rating decision, the AOJ denied service connection for bilateral dry eye syndrome because the evidence did not show a currently diagnosed disability.

April 2015, February 2016, August 2017, September 2018, and February 2019 VA treatment records documented that on physical exam, the Veteran's eyes were unremarkable.

As noted above, in January 2024, after he withdrew his Board hearing request, the Veteran submitted a copy of recent treatment records, which included a September 2023 army community hospital treatment record that noted his problem list/past medical history included dry eyes. The treatment record documented an assessment of dry eyes and noted that the requested refill was entered for Refresh eye drops, which the Veteran used as needed.

After reviewing the evidence of record, the Board finds that service connection is not warranted.

First, the evidence is against finding that his current dry eye syndrome was incurred during his active service. In this case, the record reflects that the Veteran was diagnosed with dry eye syndrome during his active service, just prior to retiring from service. See June 2006 Army Community Hospital Treatment Record. However, a November 2006 VA general medical examination found that the Veteran did not have any eye disorder other than presbyopia. A June 2013 VA eye examination also found that the Veteran did not have an eye disorder. Upon examination, the Veteran had no evidence of dry eye sequelae and dry eye testing indicated normal basal tear production. Additionally, April 2015, February 2016, August 2017, September 2018, and February 2019 VA treatment records noted that the Veteran's eyes were unremarkable. The record reflects that he was diagnosed with dry eyes again in September 2023. In light of the above, the evidence is against finding that his current dry eye disability manifested during his service.

Additionally, the evidence is persuasively against finding that his dry eye syndrome is otherwise etiologically related to his active service. In so finding, the Board affords significant probative weight to the June 2013 VA examination, as the examiner acknowledged the Veteran's assertion that he had a dry eye disorder related to his service in Iraq. The examiner explained that living in a low humidity environment, such as the desert conditions of Iraq, can exacerbate symptoms of dry eyes, but that there was no evidence to support the contention that being in low humidity environment can cause dry eye disease. As such, the evidence is against finding that his dry eye syndrome is related to his service, including his service in Iraq.

The Board acknowledges the Veteran's assertion that his dry eye syndrome is related to his service in Iraq. However, as a layperson lacking in medical training and expertise, he cannot provide a competent opinion on matters as complex as the etiology
3 VA examination, as the examiner acknowledged the Veteran's assertion that he had a dry eye disorder related to his service in Iraq. The examiner explained that living in a low humidity environment, such as the desert conditions of Iraq, can exacerbate symptoms of dry eyes, but that there was no evidence to support the contention that being in low humidity environment can cause dry eye disease. As such, the evidence is against finding that his dry eye syndrome is related to his service, including his service in Iraq.

The Board acknowledges the Veteran's assertion that his dry eye syndrome is related to his service in Iraq. However, as a layperson lacking in medical training and expertise, he cannot provide a competent opinion on matters as complex as the etiology of his dry eye disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For this purpose, his lay assertions are not considered competent medical evidence. The Board affords more probative weight to the June 2013 VA examiner's opinion, as the examiner considered the evidence of record and relevant medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

For the reasons and bases stated above, the Board finds that service connection is not warranted. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence of record persuasively weighs against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, the claim is denied.

2. Entitlement to service connection for an acid reflux disorder.

The Veteran contends that he has acid reflux that is due to stress and continuous worry while in the military and during deployments. See December 2019 Notice of Disagreement.

In the March 2019 rating decision, the AOJ favorably found that VA treatment records showed a diagnosis of gastroesophageal reflux disease (GERD).

The Veteran's STRs do not reflect complaints, treatment, or a diagnosis of an acid reflux disorder. His March 2006 Report of Medical Examination at retirement did not document any abdominal or mouth/throat abnormalities, and on an accompanying Report of Medical History, the Veteran denied experiencing frequent indigestion or heartburn and stomach/liver/intestinal/ulcer trouble.

A November 2006 VA general medical examination noted that he had no gastrointestinal symptoms.

An April 2009 army community hospital treatment record noted an assessment of "abdominal pain; epigastric resolved." An army community hospital treatment record from approximately 10 days later indicated the Veteran presented for a follow up for the acid reflux. The note documented an assessment of esophageal reflux for which the Veteran was prescribed Omeprazole.

A January 2011 army community hospital treatment record noted that the Veteran stated he had acid reflux for one week. The assessment was dyspepsia, and he was prescribed Ranitidine for acid reduction.

VA treatment records reflect that his medical history includes GERD. See, e.g., July 2012, April 2015, February 2016, August 2017, February 2019 VA Treatment Records.

In a December 2023 statement, the Veteran asserted his GERD is secondary to his depressive disorder.

After reviewing the evidence of record, the Board finds that service connection is not warranted.

As to direct service connection, the Board acknowledges that the Veteran was not provided with a VA examination with respect to his claim prior to the rating decision on appeal. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim.

In this regard, the Board finds that the Veteran has not submitted sufficient evidence to indicate that his acid reflux disorder is related to an event, injury, or disease that occurred in service. Accordingly, the Board finds that no further development of the Veteran's claim is required.

Here, the Veteran's STRs are silent for complaints, findings, or treatment for an acid reflux disorder. Post-service, a November 2006 VA general medical examination found that he had no
event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim.

Here, the Veteran's STRs are silent for complaints, findings, or treatment for an acid reflux disorder. Post-service, a November 2006 VA general medical examination found that he had no gastrointestinal symptoms, and his army community hospital treatment records reflect that he began experiencing acid reflux symptoms in 2009. As such, the evidence is persuasively against finding that his acid reflux disorder had its onset in service. Moreover, the Veteran has generally contended that his acid reflux disorder is related to stress and worry he experienced in the military, and he has not identified a specific in-service event, injury, or disease that would have caused his acid reflux disorder.

As to secondary service connection, the Veteran initially raised the issue of whether his acid reflux disorder is secondary to his service-connected depressive disorder after the rating decision on appeal, and he was not service connected for depressive disorder at the time the rating decision on appeal was issued. The Board finds he has not submitted sufficient evidence to indicate that his acid reflux disorder was caused or aggravated by his service-connected acquired psychiatric disorder.

The Board acknowledges the Veteran's assertion that his acid reflux disorder is related to his service or his depressive disorder. However, as a layperson lacking in medical training and expertise, he cannot provide a competent opinion on matters as complex as the etiology of his acid reflux disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For this purpose, his lay assertions are not considered competent medical evidence.

The Board also notes that gastroesophageal reflux disease is not an undiagnosed illness and does not qualify as one of the chronic disabilities under 38 C.F.R. § 3.317. Significantly, the Court in Atencio v. O'Rourke, 30 Vet. App. 74, 87 (2018) held that "[g]astroesophageal reflux disease is excluded from consideration as a medically unexplained chronic multisymptom illness (MUCMI) as a matter of law, as provided in § 3.317(a)(2)(i)(B)(3)." As such, presumptive service connection for gastroesophageal reflux disease due to Persian Gulf War service is not applicable here. 38 U.S.C. § 1117; 38 C.F.R. § 3.317.

3. Entitlement to service connection for sleep apnea.

The Veteran generally contends that he has sleep apnea that manifested during his service. See December 2019 Notice of Disagreement.

The March 2019 rating decision on appeal denied service connection for sleep apnea syndrome because the disorder neither occurred in nor was caused by service.

In the March 2019 rating decision, the AOJ favorably found that VA treatment records showed treatment for sleep apnea with CPAP.

The Veteran's STRs do not document a diagnosis or treatment for sleep apnea. Medical examination reports from April 1981, October 1987, April 1997, and January 2002 are silent for any findings related to sleep apnea. On a January 2006 post-deployment health assessment, the Veteran reported still feeling tired after sleeping. However, a March 2006 Report of Medical Examination at retirement did not document sleep apnea or any sleep disorders, and on an accompanying Report of Medical History, the Veteran denied having frequent trouble sleeping.

Post-service, a November 2006 VA general medical examination noted that the Veteran stated he had problems going to sleep. He did not have nightmares or breath cessation, and his wife reported he snored. On rising he felt a little tired and he would have an
April 1981, October 1987, April 1997, and January 2002 are silent for any findings related to sleep apnea. On a January 2006 post-deployment health assessment, the Veteran reported still feeling tired after sleeping. However, a March 2006 Report of Medical Examination at retirement did not document sleep apnea or any sleep disorders, and on an accompanying Report of Medical History, the Veteran denied having frequent trouble sleeping.

Post-service, a November 2006 VA general medical examination noted that the Veteran stated he had problems going to sleep. He did not have nightmares or breath cessation, and his wife reported he snored. On rising he felt a little tired and he would have an energy drink and was then "ok" the rest of the day. He had no excessive daytime hypersomnolence.

VA treatment records reflect that the Veteran was diagnosed with mild obstructive sleep apnea following a sleep study in December 2018.

After reviewing the evidence of record, the Board finds that service connection is not warranted.

As to direct service connection, the Board finds that the Veteran has not submitted sufficient evidence to indicate that his sleep apnea is related to an event, injury, or disease that occurred in service. Accordingly, the Board finds that no further development of the Veteran's claim is required.

In this case, the Veteran's STRs do not contain a diagnosis or treatment for sleep apnea. His STRs document that he reported feeling tired after sleeping in January 2006; however, his retirement medical examination did not document any sleep disorder, and upon retirement, he denied having frequent trouble sleeping. The record reflects that he was diagnosed with sleep apnea in December 2018, approximately 12 years following his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). The evidence is therefore against finding that his sleep apnea was incurred during service or is otherwise etiologically related to his active service.

In sum, the Board finds that service connection for sleep apnea is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. Accordingly, the claim is denied.

4. Entitlement to service connection for bilateral hearing loss.

The Veteran contends that he has bilateral hearing loss due to his military service. He has not set forth a specific argument in support of this appeal.

For VA purposes, a minimum degree of hearing loss is a prerequisite for entitlement to service connection. McKinney v. McDonald, 28 Vet. App. 15 (2016). Hearing loss is a disability for VA purposes if the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993).

In the July 2019 rating decision on appeal, the AOJ denied service connection for bilateral hearing loss because the evidence did not show a hearing loss disability for VA purposes.

The Veteran's April 1981 Report of Medical Examination at enlistment reported his puretone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 5 0 5 5 5

LEFT 10 5 5 10 0

The Veteran's service treatment records contain numerous audiograms, including from June 1982, June 1983, October 1987, December 1987, October 1989, April 1997, June 2000, January 2002, June 2003, October 2004, and January 2006, none of which document audiometric findings that show a hearing loss for VA purposes.

The Veteran's March 2006 Report of Medical Examination at retirement reported his puretone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 5 5
LEFT 10 5 5 10 0

The Veteran's March 2006 Report of Medical Examination at retirement reported his puretone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 5 5 10 10 5

LEFT 0 5 5 0 5

On an accompanying Report of Medical History at retirement, the Veteran answered "yes" to hearing loss and stated that a January 2006 hearing test showed a loss in hearing. The examiner reported that his most recent audiogram was within normal limits.

A November 2006 VA general medical examination noted the Veteran had normal audiograms for rating purposes.

A February 2011 army community hospital treatment record noted an assessment of sensorineural hearing loss. However, the note also stated that an audiometric evaluation indicated his pure tone results were within normal limits bilaterally.

In June 2013, the Veteran was afforded a VA hearing loss and tinnitus examination. His puretone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15/15 10/10 15 20/15 5/5

LEFT 10 10 15/10 10 10

His speech discrimination score using the Maryland CNC word list was 100 percent in the right ear and 98 percent in the left ear. He was diagnosed with normal hearing bilaterally.

In July 2019, the Veteran was afforded a VA hearing loss examination. His puretone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 10 10 15 15 10

LEFT 10 10 10 15 15

His speech discrimination score using the Maryland CNC word list was 98 percent in the right ear and 100 percent in the left ear. The Veteran was diagnosed with normal hearing bilaterally.

In January 2024, the Veteran submitted a copy of an article titled, Noise-Induced Hearing Loss and Tinnitus in Military Personnel. Treatment records submitted by the Veteran in January 2024 included an October 2022 VA treatment record that included a past medical history of sensorineural hearing loss.

The Board finds that service connection is not warranted on a direct or presumptive basis. The Veteran's STRs contain numerous audiograms, all of which do not document a hearing loss disability for VA purposes. In addition, the November 2006 VA examiner found that the Veteran had normal audiograms for rating purposes.

The objective findings from the June 2013 and July 2019 VA hearing loss examinations also do not show the requisite levels of pure-tone thresholds or speech discrimination to constitute a current disability. Hearing loss is considered a disability only when any of those above noted categories reach 40 decibels or higher, or at least three of those categories reach 26 decibels or greater. 38 C.F.R. § 3.385. The Veteran's hearing acuity in his ears have not been shown to reach a level considered to be a disability under VA regulations. His speech discrimination also remains above the threshold to be considered a disability. While the Veteran has complained of hearing loss, there is no objective evidence of loss of hearing in either ear that constitutes a disability. 38 C.F.R. § 3.385. Without a current disability of bilateral hearing loss for VA purposes, the claim for service connection cannot prevail. Brammer v. Derwinski, 3 Vet. App. 223 (1992).

While the Board acknowledges that the Veteran may be competent to state that his hearing acuity is less than it was before, or as it was prior to service, he is not competent to speak to the specific level or severity of any hearing loss as it relates to achieving audiometric guidelines. For the purposes of applying the laws and regulations administrated by VA, the level of impairment is determined by a mechanical application of the objective criteria of VA regulations. Here, the objective criteria are not met by the Veteran's hearing acuity.

In sum, the Board finds that service connection for bilateral hearing loss is not warranted. In reaching this decision, the Board has considered the benefit
inski, 3 Vet. App. 223 (1992).

In sum, the Board finds that service connection for bilateral hearing loss is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. Accordingly, the claim is denied.

5. Entitlement to service connection for PTSD.

The Veteran contends he has PTSD due to stressors he experienced while serving in Iraq, including related to encountering IEDs, small arms fire, mortars coming into camp, and stress within the camp, as well as the severe injury and death of a soldier due to an IED explosion. See June 2019 Statement in Support of Claim for Service Connection for PTSD.

In June 2019, the Veteran filed a claim for service connection for an acquired psychiatric disorder to include anxiety, depression, and PTSD. The July 2019 rating decision on appeal denied service connection for an acquired psychiatric disorder to include anxiety, depression, and PTSD because the evidence did not show a current diagnosed disability.

In October 2021, the Veteran filed a Supplemental Claim seeking service connection for depressive disorder due to chronic pain syndrome with major depressive like episode. In response to the supplemental claim, the AOJ issued a February 2022 rating decision which granted service connection for depressive disorder due to chronic pain syndrome with major depressive like episode (previously evaluated as acquired psychiatric disorder to include anxiety and depression) as secondary to a service-connected left knee disability.

As noted above, on his VA Form 10182, the Veteran indicated he disagreed with the denial of service connection for PTSD. As the Veteran has been granted service connection for an acquired psychiatric disorder other than PTSD, the Board will proceed to address the present appeal as one for entitlement to service connection for PTSD.

Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f).

The Veteran's STRs do not contain a diagnosis or treatment for PTSD. A March 2006 Report of Medical Examination at retirement documented a normal clinical psychiatric evaluation. On an accompanying Report of Medical History, the Veteran denied experiencing any psychiatric symptoms.

Post-service VA and army community hospital treatment records also do not contain a diagnosis or treatment for PTSD.

A November 2006 VA general medical examination noted that the Veteran did not claim any psychiatric conditions, and none were found. He had no psychiatric history or illness.

A February 2019 VA treatment record noted the Veteran's report that he had been having anger and depression issues at home with his wife, and his wife was concerned that he might have PTSD and wanted an evaluation. However, the records do not contain a diagnosis of PTSD.

In June 2019, the Veteran submitted a copy of a March 2019 letter from his ex-wife. In the letter, she reported that the Veteran was a different person after his return from Iraq in February 2005 and described the behavior changes that she witnessed.

In July 2019, the Veteran was afforded an initial PTSD VA examination. The examiner determined that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM-5 criteria and that he did not have a mental disorder that conformed with the DSM-5 criteria.

After reviewing the evidence of record, the Board finds that service connection for PTSD is not warranted, as there is no evidence of a diagnosis of PTSD under the DSM-5, as is required by 38 C.F.R. § 3.304(f). The Veteran's STRs and post-service treatment records are silent for a diagnosis of PTSD. Additionally, after an in-person evaluation of the Veteran and review of the Veteran's records, the July 2019 VA examiner determined that the Veteran's symptoms did not meet the diagnostic criteria for PTSD and that he did not have any mental disorder that conformed with the DSM-5 criteria. As such, service connection for PTSD is not warranted.

with the DSM-5 criteria.

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In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. Accordingly, the claim is denied.

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. Bruce, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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