Citation Nr: 1626853 Decision Date: 07/06/16 Archive Date: 07/14/16 DOCKET NO. 14-05 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), and anxiety disorder. REPRESENTATION Veteran represented by: Michael J. Kelley, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from January 1973 until September 1977. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In February 2016, the Veteran presented hearing testimony by live videoconference before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Veteran seeks entitlement to service connection for PTSD, anxiety, and panic attacks. The record shows that the Veteran has been diagnosed with various psychological disorders during the pendency of the appeal. When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Veteran's claim for service connection for PTSD, anxiety, and panic attacks is deemed to include any psychiatric disorder, and has been re-characterized as reflected on the title page of this instant document. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the evidence in the VBMS electronic claims file, or not relevant to the issues on appeal. FINDINGS OF FACT 1. Competent and credible evidence demonstrates that tinnitus had its onset during service. 2. The Veteran's currently diagnosed posttraumatic stress disorder and anxiety disorder NOS are etiologically related to the Veteran's period of active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 2. The criteria for service connection for PTSD and anxiety disorder are met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). In light of the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with his claims of entitlement to service connection are moot. Service Connection Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a)(2015). To establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). There are particular requirements for establishing service connection for PTSD that are distinct from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). 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. 38 C.F.R. § 3.304(f). 38 C.F.R. § 4.125(a) mandates that all mental disorder diagnoses must conform to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (DSM-IV). 38 C.F.R. § 3.304(f). According to the current criteria, a diagnosis of PTSD requires exposure to a traumatic event, or stressor. A stressor involves exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and the person's response involved intense fear, helplessness, or horror. The sufficiency of a stressor is a medical determination, and the occurrence of a claimed stressor is an adjudicatory determination. 38 C.F.R. § 3.304(f). The Board notes that the DSM 5 is inapplicable to this claim. See Schedule for Rating Disabilities - Mental Diseases and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093 (Aug. 4, 2014). In some circumstances, lay evidence can be competent and sufficient to establish a diagnosis of a condition provided that (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Tinnitus The Veteran claims entitlement to service connection for bilateral tinnitus, which he asserts began during active service. Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. See Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). The Board notes that because of the inherently subjective nature of tinnitus, it is readily capable of lay diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Charles v. Principi, 16 Vet. App. 370 (2014). The Veteran's service records show that his military occupation specialty (MOS) was munitions maintenance, similar to the civilian occupation of explosives operator. The Veteran was afforded a VA audiology evaluation in October 2012. The Veteran reported bilateral, recurrent tinnitus that began just prior to discharge. Upon audiometric testing, the audiologist diagnosed bilateral sensorineural high frequency hearing loss and tinnitus. The audiologist noted that the Veteran's MOS was considered a high probability for exposure to hazardous military noise. The audiologist opined that it was less than likely that the Veteran's tinnitus was related to his military service, noting that the claims file provided no evidence to suggest a causal relationship between the Veteran's tinnitus and exposure to hazardous military noise, as there were no reports, diagnoses, or treatments for tinnitus in service. In this regard, the examiner failed to adequately consider the Veteran's lay statements regarding onset and continuity of symptomatology despite the lack of corroborating evidence in the Veteran's claims folder. Thus, the 2012 audiology evaluation is inadequate and is not considered probative evidence against the Veteran's claim. Based on the foregoing, the Board finds that entitlement to service connection for tinnitus is warranted. First, the Veteran's MOS is consistent with exposure to hazardous noise, as noted by 2012 audiologist and supported by the Veteran's testimony regarding in-service noise exposure. Thus, the evidence supports a finding that the Veteran was exposed to acoustic trauma in service. 38 U.S.C.A. § 1154(a) (West 2014). Second, the preponderance of the evidence indicates that tinnitus began during service. The Veteran has provided competent and credible testimony that it began prior to discharge. Lay persons are competent to provide opinions on some medical issues, including tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Charles v. Principi, 16 Vet. App. 370 (2014). Given the nature of a tinnitus condition, the Veteran is uniquely situated to competently identify and report on its onset and duration. The Board finds the Veteran's consistent testimony credible. Third, the preponderance of the evidence shows that tinnitus is related to service, in that it had not resolved. The Veteran provided testimony that tinnitus had existed since it began. As the Veteran is competent to provide this testimony, and the Board finds it credible, the evidence demonstrates a nexus between the Veteran's current tinnitus and service. Given the nature of a tinnitus condition, the Veteran is uniquely situated to competently identify and report on its onset and duration. Furthermore, the opinion of the 2012 audiologist is not probative evidence against the claim, as it failed to consider the Veteran's credible statements regarding the in-service occurrence of tinnitus. Instead, the Board finds the Veteran's assertion that tinnitus was incurred in service is both competent and credible, and thus is positive evidence that supports a finding of nexus in this case. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). Accordingly, the criteria for service connection for tinnitus are met. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 2. A Psychiatric Disorder The Veteran seeks entitlement to service connection for a psychiatric disorder, claimed as PTSD, anxiety, and panic attacks. The Veteran's service treatment records show that in May 1973 he received top secret clearance, and was present at the Tainan Air Force Base (AFB) from 1973 to 1974. In March 1974, while at the Tainan AFB, the Veteran was assessed as having a "nervous situation" with mild gastritis. In June 1975, the Veteran was treated for chest pains. The Veteran's personnel records show that he consistently received high performance marks until the period of September 1976 through April 1977, when he received poor marks for frequent absences and poor grooming. In July 1977, the Veteran reported having a "nervous stomach" for several days. In a June 1977 Certificate of Psychiatric Evaluation, the evaluator diagnosed mixed personality disorder with immature and passive-aggressive traits, and recommended that the Veteran be administratively separated from the Air Force. The Veteran's August 1977 separation physical showed normal psychiatric findings. A September 1999 VA psychiatry record notes that the Veteran presented for an evaluation of anxiety. The Veteran reported increasing anxiety attacks where his palms would sweat, he would have palpitations, feelings of this throat closing, and chest pain. It was reported that the Veteran was negative for a cardiac problem. The psychiatrist diagnosed anxiety disorder, NOS. In a November 2010 VA mental health record, it was noted that while in Vietnam, the Veteran experienced loading body bags into trailers, and taking on enemy fire. The Veteran reported that when he returned from Vietnam, he had decreased emotional closeness and decreased emotional reactions. In a January 2011 VA mental health record, it was noted that the Veteran was experiencing nightmares about Vietnam 4 to 5 times per week. The Veteran recalled the collateral damage that he witness in Vietnam as a weapons specialist on a B52 bomber. At that time the psychologist noted current diagnoses of panic disorder, depressive disorder not otherwise specified, and alcohol abuse sustained early remission. In a May 2011 VA psychiatry record, it was noted that the Veteran had diagnoses of alcohol abuse, sustained early remission; depressive disorder, NOS; panic disorder without agoraphobia; and chronic PTSD. In an August 2011 statement, the Veteran wrote that in the spring of 1974, while transporting a nuclear weapon on a fork lift, the road collapsed in the munitions dump due to heavy rains. The Veteran reported that he was trapped underwater in a drainage ditch for several hours while others tried to lift the fork lift off of him. He reported that he had to breathe through a reed while he tried to free the fork lift from the mud so that he could escape. The Veteran also reported that for a period of three days at the Tainan AFB, the 6214th Munitions Maintenance Squadron was surrounded by Republic of China tanks until diplomatic solutions were negotiated. The Veteran further stated that VA would likely be unable to get the records regarding the incident, as they were considered top secret. VA requested verification of the Veteran's reported stressor from the Defense Personnel Records Information Retrieval System (DPRIS). DPRIS responded that they were unable to verify the Veteran's report of the fork lift accident, or incident with the Republic of China tanks. In November 2011, the Veteran presented to a private psychologist, Dr. JK, for mental health treatment and again reported the in-service stressors of being trapped under a forklift and being surrounded by Republic of China tanks. Dr. JK noted that while trapped under the forklift, the Veteran felt totally and completely helpless. The Veteran's treatment provider, Dr. JK, noted that as the Veteran recounted the story, he became visibly upset, began sweating, and his breath got shallow. The Veteran also expressed that he felt upset about all the death and destruction that he caused dropping explosives from a B52 bomber. Dr. JK diagnosed PTSD according to the DSM-IV criteria, and related to the reported in-service stressors that were deemed sufficient to support a diagnosis of PTSD. The Veteran was afforded a VA mental disorder examination for disorders other than PTSD in October 2012. Upon review of the Veteran's medical records, the examiner noted a current diagnosis of anxiety disorder, not otherwise specified, with mixed anxiety, depression, and PTSD symptoms. The examiner did not assess the Veteran for PTSD at that time. Upon interview, the Veteran reported that within one year of separation from service, he began to experience anxiety and panic attacks. The Veteran again recounted the events that occurred in 1974 at the Tainan AFB. The Veteran reported being on anxiety medication since 1978, going to the emergency room on several occasions because his panic attacks mimicked heart attacks. The examiner opined that the Veteran's anxiety disorder was at least as likely as not related to his military service, but provided no rationale. The 2012 examiner provided additional rationale in subsequent email correspondence dated October 2012 through November 2012. The 2012 examiner explained that the in-service 1977 psychiatric evaluation that resulted in a diagnosis of a personality disorder was afforded minimal weight in his analysis because it was likely a quick exam and not as thorough as the 2012 examination, and therefore the absence of an Axis I diagnosis on the 1977 examination was of little import. In addition, the examiner noted that simply because the Veteran reported being free of mental illness symptoms at the time of discharge, that did not preclude such symptoms from developing post-discharge due to in-service stressors. The examiner further reported that upon interview, there was no reason to doubt the Veteran's reported in-service stressors. At the February 2016 Board videoconference hearing, the Veteran's attorney advanced that the Veteran's anxiety problems had their onset during the period of September 1976 and April 1977, as evidenced by the sharp decline in the Veteran's previously high performance marks. The Veteran's attorney further contended that the 1977 diagnosis of a congenital personality disorder was a diagnosis of convenience to support discharging the Veteran, and also must have been in error as the Veteran has not been diagnosed with a personality disorder since. The Veteran testified that at his performance decline coincided with an increase in his anxiety and panic attacks. Based on the foregoing, the Board finds that entitlement to service connection for PTSD and anxiety disorder is warranted. First, the Veteran has current diagnoses of PTSD and anxiety disorder, NOS. See November 2011 report by Dr. JK; October 2012 VA examination; November 2012 VA examination addendum. Both examiners diagnosed those conditions according to the relevant DSM IV criteria. 38 C.F.R. § 4.125(a). Second, the Veteran has credibly testified that he experienced significant in-service stressors that caused anxiety and panic attacks in satisfaction of the second element of service connection. With regard to PTSD, the Board finds that the evidence supports a finding that the claimed in-service stressor occurred, despite the lack of official verification from DPRIS; and there is competent medical evidence of record demonstrating that the Veteran's claimed stressor is sufficient to support a diagnosis of PTSD. The Veteran's STRs show that his MOS as a munitions specialist is consistent with the nature of the claimed in-service events, namely the fork lift accident while transporting a weapon and the incident with the Republic of China tanks surrounding the munitions dump. The STRs further show that the Veteran was stationed at the Tainan AFB at the time the claimed events occurred, and that he was treated for a "nervous condition" in March 1974, in temporal proximity to the timeframe in which the Veteran reported that the in-service stressors occurred. Thus, the Board concludes that there is sufficient evidence of record to verify the claimed in-service stressors. In addition, the claimed in-service stressors have been medically determined to be sufficient to support a PTSD diagnosis. 38 C.F.R. § 3.304(f); see November 2011 report by Dr. JK. Third, the medical evidence of record shows that the Veteran's currently diagnosed PTSD and anxiety disorder are etiologically related to his period of active duty service and reported in-service stressors. See November 2011 report by Dr. JK see October 2012 VA examination; November 2012 VA examination addendum. Both opinions are adequate as they were supported by articulated rationales, fully considered the Veteran's relevant medical history, military service, and adequately considered the Veteran's lay testimony. Thus, the Board places great weight on the conclusions reached by Dr. JK and the 2012 examiner. With regard to the 1977 psychologic evaluation, the Board places greater probative weight on the 2012 VA examiner's opinion as it was based on a more thorough evaluation that fully considered the Veteran's lay statements. In addition, the Board finds it significant that the Veteran has received mental health treatment for a significant period of time, and at no other point has he been diagnosed with a personality disorder. See November 2010 and May 2011 VA treatment records. Thus, the Board affords minimal weight to the 1977 psychologic evaluation. In sum, the most probative evidence of record demonstrates that the Veteran's currently diagnosed PTSD and anxiety disorder, NOS, are etiologically related to his period of active duty service. Thus, the criteria for service connection for an acquired psychiatric disorder, to include PTSD and anxiety disorder, NOS, are met. 38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.303, 3.304(f), 4.125(a) (2015). ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for PTSD and anxiety disorder is granted. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs