Citation Nr: 1754840	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  17-28 643	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).
	
2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for a left hand skin condition.


REPRESENTATION

Veteran represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

J. Costello, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 2005 to August 2008.  He has additional service as a member of the United States Army Reserve through November 2012.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA).  Jurisdiction was subsequently transferred to the St. Petersburg, Florida RO.

The Board notes that the Veteran did not request a hearing.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issue of entitlement to service connection for a left hand skin condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  PTSD is attributable to service.

2.  The Veteran does not have a current diagnosis of bilateral hearing loss that comports with VA's definition of a hearing loss disability.


CONCLUSIONS OF LAW

1.  PTSD was incurred in active service.  38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2017).

2.  The criteria to establish entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Here, the Veteran was provided with the relevant notice and information in a February 2014 letter prior to the initial adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  The Veteran has not alleged any notice deficiency during the adjudication of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's service treatment records (STRs), identified private treatment records, and some of his VA treatment records have been obtained and associated with the record.  The Veteran was also provided with a VA examination which contains a description of the history of his bilateral hearing loss; documents and considers the relevant medical facts and principles; and provides an opinion regarding the etiology of the Veteran's claimed bilateral hearing loss.  VA's duty to assist with respect to obtaining relevant records is addressed in the remand section below.  38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  

Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

PTSD

Service connection specifically for PTSD requires medical evidence diagnosing the condition in accordance with §4.125(a) of this chapter; 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).  The following provisions apply to claims for service connection of PTSD based on the specified type of claimed stressor:

(1) If the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

(2) If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

(3) If a stressor claimed by the Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.

(4) If the evidence establishes that the Veteran was a prisoner-of-war under the provisions of §3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

(5) If a PTSD claim is based on in-service personal assault, evidence from sources other than a Veteran's service records may corroborate a Veteran's account of the stressor incident.  Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy.  Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources.  Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes.  VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.

In this case, the Veteran's DD 214 lists his military occupational specialty (MOS) as infantryman.  He was awarded with a Combat Infantryman Badge and Iraq Campaign Medal.  The Veteran stated that while performing this MOS and during his general service in Iraq, he and his unit came under enemy fire on a regular basis.  He stated in a June 2016 letter that he feared for his life often when he was deployed and that he is still on guard and anxious.  

The post-service records diagnosed the Veteran as having PTSD.  In May 2014, a VA psychologist determined that the Veteran had PTSD.  The VA psychologist stated in a June 2015 letter that the Veteran had been engaging in PTSD treatment since September 2013 and indicated that his PTSD was secondary to combat experiences while serving in Iraq from 2006 to 2007.  

In September 2014, the Veteran had inpatient psychiatric treatment for a week after a suicide attempt.  His PTSD symptoms were noted during the admission.

In support of his claim, the Veteran submitted a statement in which he indicated that his demeanor and behavior changed for the worse after he had served in Iraq.  He described various psychiatric symptoms which appeared compatible with his PTSD diagnosis.  

In June 2017, the Veteran underwent a private psychological examination.  The psychologist reviewed the Veteran's claims file.  The psychologist diagnosed the Veteran with PTSD.  The Veteran had symptoms of recurrent traumatic events.  He saw fellow soldiers die and endured numerous attacks from enemy combatants.  He reported regular flashbacks and feelings of hopelessness and grief.  The psychologist opined that the Veteran's PTSD is more likely than not due to in-service stressors that occurred during his combat experiences in Iraq.  The Veteran experienced multiple stressful events such as his Humvee being overturned and he witnessed fellow soldiers die.  Also, the psychologist opined that the Veteran's symptoms are directly related to the traumatic events he experienced in combat.  

The Veteran is also in receipt of the CIB; therefore his military-related stressor is conceded.  Also as noted, the Veteran contends that his unit regularly came under enemy fire, feared for his life, and that he was rendered unconscious multiple times while engaging the enemy during his tour of duty in Iraq.  Thus, he has also presented a stressor relating to his fear of hostile military or terrorist activity.  A private psychologist confirmed that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran had related symptoms thereto.  This medical examiner is competent to make that complex assessment.  See generally Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  

The Board notes that there is medical evidence to the contrary that the Veteran's PTSD is related to his military stressors, however.  In this regard, a March 2014 VA examination found that while the Veteran did meet the criteria for PTSD, the examiner would have to resort to speculation to state or identify the etiology of the Veteran's current symptoms since he had adverse childhood experiences (father violently killed; living in a refugee camp under poor conditions, and fleeing a war zone in Burundi), and betrayal by family members since return from deployment. The examiner found that while the Veteran's military experiences may have contributed to PTSD, he could not attribute all of the Veteran's symptoms to his participation in military combat with any degree of certainty.  While the examiner could not attribute the Veteran's PTSD to his military experiences, he did concede that those experiences may have contributed to the Veteran's PTSD.  The applicable legal standard does not require the Veteran's military stressors to be the sole cause of the Veteran's PTSD.  Further, although some of the VA PCT records from 2015 indicate that the Veteran had at that time subclinical or sub-syndromal PTSD, there are earlier diagnoses of PTSD in which the Veteran presumably met the applicable criteria for such a diagnosis.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Moreover, the Veteran submitted a 2017 private examiner opinion that the Veteran continues to meet the DSM criteria for a diagnosis of PTSD related to his combat experiences.  The Board does not find the evidence that the Veteran does not have a diagnosis of PTSD or that even if he meets the criteria for such a diagnosis, it is not related to his military stressors, to be both clear and convincing evidence to the contrary that the Veteran's stressors did not occur or that the Veteran has PTSD from some other etiology.  The Board finds that equal weight should be given to the evidence supportive of the Veteran's claim in this regard.

The Board finds the evidence is relative equipoise as to whether the Veteran has PTSD related to his combat experiences in Iraq.  As such, the Board finds that as there is an accepted in-service stressor, a current diagnosis of PTSD, and a psychologist's opinion that the stressor resulted in PTSD, service connection for PTSD is warranted.  

Hearing Loss

Organic disease of the nervous system such as sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of the veteran's separation from service.  38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

With chronic diseases shown in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date.  Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim.  38 C.F.R. § 3.303(b).  This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases).  Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013).  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, supra.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  

Hearing loss disability is defined by regulation.  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss."  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability.  The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R.§ 3.303(d).  

The Veteran contends that he was exposed to acoustic trauma during service.  The American Medical Association defines "acoustic trauma" as "[a] severe injury to the ear caused by a short-duration sound of extremely high intensity such as an explosion or gunfire."  American Medical Association Complete Medical Encyclopedia 112 (Jerrold B. Leiken, M.D., & Martin S. Lipsky, M.D., eds., 2003).  An acoustic trauma can cause permanent hearing loss, but does not necessarily do so.  See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  

On the July 2005 entrance examination, audiological evaluation revealed that puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
0
5
LEFT
0
0
5
10
5

Post-service, in May 2014, the Veteran was afforded a disability benefits questionnaire (DBQ) for hearing loss.  On examination, audiological evaluation revealed that puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
15
20
20
20
LEFT
25
15
25
20
25

His speech discrimination score for his left ear was 100 percent and his right ear was 96 percent.  The VA examiner diagnosed the Veteran with normal hearing in his bilateral ears and opined that it is less likely than not that his hearing loss was due to military noise exposure as his hearing was normal for VA purposes.

The VA examiner's opinion, rendered by a medical professional, is afforded significant probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the probative value of medical opinion evidence is based on the personal examination of the patient, the knowledge and skill in analyzing the data, and the medical conclusion reached); see also Nieves- Rodriguez (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and has sound reasoning for the conclusion.)  

Although the Veteran is competent to describe his symptoms and the nature and extent of his in-service noise exposure, the Veteran does not have the requisite specialized knowledge or training to diagnosis hearing loss.  See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's lay testimony as to whether he has such a diagnosis is not probative.

In summary, the preponderance of the evidence shows that the Veteran does not have a current diagnosis of bilateral hearing loss for VA purposes.  Therefore, the benefit-of-the-doubt rule does not apply, and service connection must be denied.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Service connection for PTSD is granted.

Service connection for bilateral hearing loss is denied.  


REMAND

The Board sincerely regrets the additional delay that will result from this remand, but it is necessary to have a complete record to decide the claim, so the Veteran is afforded every possible consideration.

In the April 2017 statement of the case (SOC), the RO indicated that the Veteran was seen in July 2013 for a mild rash on his fourth and fifth fingers of his right hand due to "spilling some machine gun fluid" while on active duty.  According to the SOC, the rash completely went away when a topical cream was used. 

When reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them.  See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); see also Jolley v. Derwinski, 1, Vet. App. 37 (1990).  These records should be obtained in compliance with VA's duty to assist.  

In a March 2013 statement, the Veteran indicated that he received all of his medical care for the issues on appeal from the VA Outpatient Clinic in Jacksonville, Florida and the VA Mental Health Clinic, South Point in Jacksonville, Florida.

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.  Obtain and associate with the record copies of all clinical records of the Veteran's treatment at the VA Outpatient Clinic in Jacksonville, Florida and the VA Mental Health Clinic, South Point in Jacksonville, Florida and any associated outpatient clinics.  All records and/or responses received should be associated with the claims file.

2.  Following completion of the foregoing, the AOJ must review the claims folder and ensure that all of the requested development has been conducted and completed in full.  If not, it must be returned for corrective action. 

3.  After the requested development has been completed, the AOJ should readjudicate the merits of the Veteran's claim based on all the evidence of record.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  The case should then be returned to the Board.   

The Veteran 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. §§ 5109B, 7112 (2012).




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs