Citation Nr: 1136331 Decision Date: 09/27/11 Archive Date: 10/03/11 DOCKET NO. 08-24 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD A. Mecone, Associate Counsel INTRODUCTION The Veteran had active military service from March 1994 to March 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that, despite the Veteran's own characterization of his disability, the scope of a claim includes any disability that may reasonably be encompassed by a Veteran's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). It is not proper to adjudicate the varying diagnoses as separate claims; rather, VA must weigh and assess the nature of the current condition the Veteran suffers from when determining the breadth of the claim before VA. Clemons at 6. As such, the Board finds that the Veteran's mental health disability claim is properly characterized as a claim for service connection for an acquired psychiatric disability, rather than solely as a claim for service connection for a personality disorder. Over the years, the Veteran has been diagnosed with several different psychiatric disabilities including a personality disorder, an adjustment disorder, and more recently, depression not otherwise specified (NOS), and anxiety NOS. FINDINGS OF FACT 1. The Veteran's depression and anxiety are as likely as not traceable to military service. 2. It is as likely as not that the Veteran's pre-existing hearing loss was permanently aggravated during his military service. 3. The Veteran's tinnitus is as likely as not attributable to military service. CONCLUSIONS OF LAW 1. The Veteran has depression and anxiety that are the result of disease or injury incurred during active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). 2. The Veteran's pre-existing bilateral hearing loss was likely aggravated during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.306, 3.385 (2010). 3. The Veteran has tinnitus that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). It is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. A. Acquired Psychiatric Disability The Veteran contends that he suffers from an acquired psychiatric disability which began during his time on active duty. A September 1993 service entrance examination revealed a normal psychiatric evaluation, and in a Report of Medical History filled out by the Veteran at entrance, he reported that he had never experienced and did not then experience depression or excessive worry or nervous trouble of any sort. A September 1994 neurology consultation showed that the Veteran had signs of depression. It was noted that the Veteran had a depressed affect. The Veteran was ultimately administratively discharged due to psychiatric problems which included an Axis I diagnosis of polysubstance dependence and adjustment disorder with mixed disturbance of emotions and conduct, and an Axis II diagnosis of antisocial personality disorder, which was noted to be the primary diagnosis. See December 1995 psychiatric evaluation by E.S., MAJ, MC. Specifically, this December 1995 psychiatric evaluation noted that the Veteran was admitted to the Mental Health Division for evaluation of an administrative separation from the service. The evaluation noted that the Veteran was admitted for further evaluation of his homicidal and suicidal ideation, explaining that he had thoughts of killing his wife and brother due to his wife's infidelity with his brother, and also had thoughts of killing other soldiers in his unit because they had treated him badly. Despite the above Axis I and Axis II diagnoses, the examiner also stated that there was no evidence of any major psychiatric disorder except for the polysubstance abuse, and noted that the nature of the Veteran's threat was criminal and not psychiatric. Following service, the record reflects an Axis I diagnosis of depression NOS and anxiety disorder NOS, and an Axis II diagnosis of a personality disorder with antisocial and paranoid traits. See January 2003 Psychiatric evaluation by P.H., D.O., March 2003 psychological assessment by D.V., PhD, and an April 2005 Psychiatric evaluation by P.H., D.O. The Veteran was afforded a VA psychiatric examination in November 2010 to obtain an opinion regarding the medical probability that the Veteran's currently diagnosed acquired psychiatric disorder(s)-depressive disorder NOS and anxiety disorder NOS, were attributable to his military service. The VA examiner rendered an Axis I diagnosis of depressive disorder NOS, and alcohol dependence in sustained partial remission, and an Axis II diagnosis of antisocial personality disorder. The VA examiner, R.H., opined that it was impossible for him to say that the Veteran had an acquired psychiatric disorder that was attributable to his active military service. No rationale to support this statement was provided. However, Dr. H. also noted that the Veteran's perception of maltreatment in the military was certainly a stressor for him when his chronic relapsing depressive disorder first began. Also noteworthy according to Dr. H., was the fact that the Veteran perceived his frequent homicidal ideation as being the result of his military training. Dr. H. noted that the symptoms of the Veteran's depressive disorder were intimately tied to his antisocial personality disorder and so it was difficult if not impossible to delineate the symptoms associated with each. Initially, the Board notes that although the Veteran was diagnosed with an antisocial personality disorder while on active duty in 1995, and administratively discharged due to his psychiatric problems, pursuant to 38 C.F.R. § 3.303(c), personality disorders and mental deficiency are not diseases or injuries within the meaning of applicable legislation, and as such, are not capable of service connection. Therefore, the question turns to whether the Veteran's acquired psychiatric disability, specifically, his diagnosed depressive disorder and anxiety, is traceable to his time spent on active duty. In this case, the service treatment records (STRs) do not document a psychiatric disability at the Veteran's entrance into service. Specifically, a September 1993 service entrance examination revealed a normal psychiatric evaluation, and in a Report of Medical History filled out by the Veteran at entrance, he reported that he had never experienced and did not then experience depression or excessive worry or nervous trouble of any sort. Therefore, because no defects or psychiatric problems were found when the Veteran was examined on entrance into service, the Veteran is presumed sound at entry. See 38 U.S.C.A. § 1111. Although a depressive disorder was not diagnosed during service, an in-service neurology consultation noted that the Veteran showed signs of depression and was found to have a depressed affect. See September 1994 neurology consultation. The Veteran was administratively discharged from service due to psychiatric problems, but at the time, he was only diagnosed with an adjustment disorder and an antisocial personality disorder-a depressive disorder was not specifically diagnosed. See December 1995 psychiatric evaluation by E.S., MAJ, MC. The Veteran was first diagnosed with a depressive disorder in 2003, approximately seven years after his discharge from the military. As noted above, the Veteran's claim was remanded to obtain an opinion as to whether his currently diagnosed acquired psychiatric disorder(s) (including a depressive disorder and anxiety disorder) were attributable to his military service. The VA psychiatrist, R.H., opined that it was impossible for him to say that the Veteran had an acquired psychiatric disorder that was attributable to his active military service, but the examiner went on to set out some reasons for believing that current disability was indeed traceable to service. Dr. H. noted that the Veteran's perception of maltreatment in the military was certainly a stressor for him when his chronic relapsing depressive disorder first began, and also noted that the Veteran perceived his frequent homicidal ideation as being the result of his military training. The Board finds that these additional statements by Dr. H. run contrary to his opinion and instead imply a likely possibility that the Veteran's diagnosed depressive disorder and anxiety are traceable to his time spent on active duty. In summary, the Veteran was found to have a "depressed affect" during his time on active duty, and was subsequently diagnosed with a depressive disorder approximately seven years after service. The record reflects that the Veteran has experienced psychiatric symptoms during service and since that time, including the time period before his 2003 diagnosis of depressive disorder. Further, the 2010 VA examiner acknowledged that the symptoms of the Veteran's depressive disorder were intimately tied to his antisocial personality disorder, thereby making it impossible to delineate the symptoms associated with each. This statement suggests that it would be impossible to discern whether the Veteran's psychiatric symptoms prior to his 2003 diagnosis of depressive disorder were related to his depressive disorder or his personality disorder. Finally, the evidence of record shows a connection between the Veteran's depressive disorder and his time spent on active duty, with the VA examiner, Dr. H., noting that the Veteran's perception of maltreatment in the military was certainly a stressor for him when his chronic relapsing depressive disorder first began, and also noting that the Veteran perceived his frequent homicidal ideation as being the result of his military training. In light of the above, the Board finds that the evidence regarding a relationship between the Veteran's acquired psychiatric disability and his time spent on active duty to be in equipoise. 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, resolving reasonable doubt in favor of the Veteran, the Veteran's claim of entitlement to service connection for depression and anxiety is granted. B. Hearing loss and Tinnitus The Veteran contends that his reduced hearing acuity and tinnitus are the result of acoustic trauma from his time spent on active duty in the infantry. The Veteran's DD Form 214 shows his military occupational specialty (MOS) to be an infantryman. A September 1993 entrance examination reflects reduced hearing acuity-at 6000 Hertz. There was a 65 decibel reading in the right ear, and 30 decibel reading in the left. The service treatment records (STRs) do not contain any complaints or treatment for hearing loss or tinnitus, and unfortunately, a hearing evaluation at the time of the Veteran's discharge in March 1996 was not conducted or is unavailable. The Veteran was afforded a VA examination in April 2007, at which point he described experiencing bilateral periodic tinnitus for the past eleven to twelve years. The April 2007 audiological evaluation reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 30 65 LEFT 10 10 10 40 50 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 percent in the left ear. The VA audiologist diagnosed the Veteran with mild to moderately severe sensorineural hearing loss between 3000 and 4000 Hertz in the right ear, and a mild to moderate sensorineural hearing loss between 3000 and 4000 Hz in the left ear. The VA examiner opined that he was unable to determine the etiology of the Veteran's bilateral hearing loss and tinnitus without resorting to speculation. A June 2007 letter by R.S.K., M.D. stated that the Veteran had bilateral high frequency hearing loss, and that the levels were consistent with someone who was exposed to aircraft noise and gunfire. However, Dr. K. did not indicate whether he had examined the service treatment records, which showed reduced hearing acuity at entrance; nor did he provide an explanation for his assessment that the Veteran's current hearing loss was "consistent" with someone who was exposed to aircraft noise and gunfire. The Veteran was afforded another VA audiological examination in December 2010, with a February 2011 addendum to the initial examination after the claims file was reviewed. The December 2010 audiological evaluation reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 30 65 LEFT 10 10 10 45 55 Pure tone threshold averages were 30 decibels in the left ear, and 31 decibels in the right ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. The audiologist diagnosed the Veteran with a mild to severe sensorineural hearing loss between 3000 and 8000 Hertz in the right ear, with a moderate to moderately severe, rising to mild sensorineural hearing loss in the left ear. At this December 2010 VA examination, the Veteran reported being exposed to aircraft, landmines, grenades and small weapons fire while serving on active duty, and noted that he first noticed ringing in his ears after exposure to rifle range noise. In a February 2011 addendum, the VA audiologist, C.T., AuD., who conducted the December 2010 VA examination, noted that she had reviewed the claims file, and opined that it was at least as likely as not that the Veteran's pre-existing hearing loss was permanently aggravated by military service. The examiner explained that an entrance hearing evaluation revealed a bilateral high frequency hearing loss at 6000 Hz, and that a separation hearing test was not conducted to rule out a decrease in hearing sensitivity. The audiologist noted that the Veteran's next available hearing test done at his initial VA examination in 2007 revealed a decrease in high frequency hearing acuity bilaterally. C.T., AuD., explained that although noise after his military service may have contributed to his hearing loss, there was a 50/50 probability that military noise permanently aggravated his pre-existing hearing loss. The VA examiner also opined that the Veteran's bilateral tinnitus was at least as likely as not caused by or a result of military service. The VA examiner explained that the Veteran reported the onset of bilateral tinnitus in the military, and also noted that high frequency hearing loss was permanently aggravated in the military. The Board notes that for the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. However, the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). Here, the Board finds that the Veteran is currently diagnosed with bilateral hearing loss as defined by 38 C.F.R. § 3.385, as the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater (for example, the auditory threshold at 4000 Hertz is 65 decibels for the right ear, and 55 decibels for the left ear). See December 2010 VA audiological examination. Regarding evidence of in service acoustic trauma, as noted above, the Veteran alleges that he was exposed to loud noise from aircraft, grenades, and rifles while training on firing ranges. The Veteran is competent to describe his in-service exposure to loud noises, and continued symptoms since that time, see Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994), and in fact, the Veteran's DD Form 214 shows an MOS of infantryman which supports his contention of in-service noise exposure. In terms of whether the Veteran's pre-existing hearing loss was permanently aggravated by his active duty service, the February 2011 VA examiner opined that it was at least as likely as not that the Veteran's hearing loss was permanently aggravated by military service. The examiner explained that an entrance hearing evaluation revealed a bilateral high frequency hearing loss at 6000 Hz, and that a separation hearing test was not conducted to rule out a decrease in hearing sensitivity. The audiologist noted that the Veteran's next available hearing test done at his initial VA examination in 2007 revealed a decrease in high frequency hearing acuity bilaterally. C.T., AuD., explained that although noise after his military service may have contributed to his hearing loss, there was a 50/50 probability that military noise permanently aggravated his pre-existing hearing loss. In this case, even without being able to consider a hearing test at discharge from service, the VA examiner believed that it was just as likely that his hearing acuity permanently decreased in service as it was that it decreased after service. There is no other medical opinion in the record contradicting the 2011 VA audiologist's findings, and in fact, a June 2007 letter by R.S.K., M.D., stated that the levels of the Veteran's bilateral high frequency hearing loss were consistent with someone who was exposed to aircraft noise and gunfire. This statement tends to support the finding that the Veteran's pre-existing hearing loss was permanently aggravated by military noise exposure. In sum, because the service treatment records do not contain a discharge audiological examination, it is difficult to determine whether the Veteran's pre-existing hearing loss permanently worsened while he was on active duty. In fact, the April 2007 VA examiner opined that he was unable to determine the etiology of the Veteran's bilateral hearing loss without resorting to speculation. Nevertheless, because the record shows evidence of in-service acoustic trauma, and contains an opinion by a VA examiner expressing her belief that there was a 50/50 probability that the Veteran's pre-existing hearing loss was permanently aggravated by military noise exposure, the Board finds that at the very least, the evidence is in equipoise, and the benefit of the doubt belongs to the Veteran. Regarding tinnitus, the Veteran described experiencing ringing in his ears ever since service until the present time. See April 2007 VA examination (the Veteran described experiencing bilateral periodic tinnitus for the past eleven to twelve years). The Veteran is competent to report ringing in his ears since service, as this symptom is capable of lay observation. There is nothing in the record contradicting the Veteran's account of continued ringing in his ears since service, and as such, the Board finds the Veteran's statement in this regard to be credible. In terms of establishing a nexus between service and his currently diagnosed tinnitus, the February 2011 audiologist, after reviewing the Veteran's report of military noise exposure opined that the Veteran's tinnitus was at least as likely as not caused by or a result of military service. The VA examiner explained that the Veteran reported the onset of bilateral tinnitus in the military, and also noted that high frequency hearing loss was permanently aggravated in the military; presumably implying that the Veteran's tinnitus was also related to his hearing loss. Although the audiologist provided only a minimal rationale to support her conclusion, given that she found a positive association between the Veteran's report of his in-service noise exposure and his currently diagnosed tinnitus, the reasonable inference is that she determined that the type and duration of in-service noise exposure was sufficient to conclude that the Veteran's current tinnitus was as likely as not the result of military noise exposure. Her opinion is supported by the Veteran's DD Form 214, which shows that the Veteran served in the infantry, thereby exposing him to weaponry, and further, the record does not contain a medical nexus opinion contradicting her assessment. In conclusion, the Veteran is competent to describe his in-service exposure to loud noises, and in fact, the Veteran's DD Form 214 supports his contention of in-service acoustic trauma. Further, after considering the Veteran's reported history of in-service acoustic trauma and continued symptoms since that time, the 2011 audiologist found a 50/50 probability that the Veteran's tinnitus was a result of his time spent on active duty. Therefore, as the evidence as to whether or not the Veteran's tinnitus is related to service is in equipoise, the benefit of the doubt belongs to the Veteran. ORDER Service connection for a depressive disorder and anxiety disorder is granted. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs