Citation Nr: 18141236 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 15-30 821 DATE: October 10, 2018 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) with major depressive disorder, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. There is no competent and credible evidence corroborating the Veteran’s claimed in-service stressor and, consequently, he does not have a diagnosis of PTSD based on a verified in-service stressor. 2. An acquired psychiatric disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD with major depressive disorder, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from April 1968 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the undersigned held the record open for 60 days for the receipt of additional evidence, which was received in May 2016. 38 U.S.C. § 7105(e)(1). The Board also notes that, subsequent to the issuance of the August 2015 statement of the case, additional VA treatment records dated through December 2015 were associated with the record. However, such are either unrelated to the instant claims, or contain duplicative information that was previously considered by the Agency of Original Jurisdiction (AOJ). Therefore, such records are irrelevant to the instant claims and there is no prejudice to the Veteran in the Board proceeding with a decision at this time. 38 C.F.R. § 20.1304(c). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD with major depressive disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The term “psychosis” includes brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance/medication-induced psychotic disorder. 38 C.F.R. § 3.384. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as discussed below, as the Veteran does not have diagnoses of psychoses, service connection on a presumptive basis, to include based on a continuity of symptomatology, is not warranted. For PTSD, service connection 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). The evidence required to support the occurrence of an in-service stressor varies depending on whether the veteran was engaged in combat with the enemy. 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. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). Prior to July 13, 2010, VA had generally required that, where a determination is made that the veteran did not “engage in combat with the enemy,” or the claimed stressor is not related to combat, the veteran’s lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a 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. The provisions of this amendment apply to applications for service connection for PTSD that are appealed to the Board on or after July 13, 2010, but have not yet been decided by such date, as is the case here. 75 Fed. Reg. 39, 843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41, 092 (July 15, 2010). Once the claimed stressor has been verified, the veteran’s personal exposure to the event may be implied by the evidence of record. A veteran need not substantiate his actual presence during the stressor event; the fact that the veteran was assigned to and stationed with a unit that was present while such an event occurred strongly suggests that he was, in fact, exposed to the stressor event. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association’s Diagnostic and Statistical Manual, Fifth Edition (DSM-5). However, with respect to this provision, the Board notes that the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), is still applicable for claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). As this appeal was certified to the Board in January 2016, the revised regulations apply. However, the Secretary has specifically indicated that all diagnoses completed under DSM-IV may still be applied for any claims pending before the Board. Id. As the record contains evaluations performed in 2013 citing DSM-IV, the Board will consider the DSM-IV based assessments provided in the Veteran’s record in reaching a decision regarding his claim for service connection for an acquired psychiatric disorder, to include PTSD with major depressive disorder. 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. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has an acquired psychiatric disorder, to include PTSD with major depressive disorder, due to his military service, to include the circumstances surrounding his participation in Project Corona, which will be discussed in greater detail below. VA treatment records reflect that the Veteran has been diagnosed with depressive disorder, not otherwise specified, and PTSD. Such also reflect a notation of “rule out dysthymia;” however, such diagnosis has not been confirmed. Additionally, an October 2013 VA examination report indicates that the Veteran was diagnosed with PTSD and major depressive disorder based on his claimed in-service stressor. However, as will be discussed below, the Board finds that there is no competent and credible evidence corroborating the Veteran’s claimed stressor, and the evidence does not otherwise show that an acquired psychiatric disorder is causally or etiologically related to any disease, injury, or incident during service. As such, service connection for an acquired psychiatric disorder, to include PTSD with major depressive disorder, is not warranted. In this regard, in April 2014, the Veteran submitted a stressor statement, the contents of which he further reiterated during his April 2016 Board hearing. In this regard, he reported that he participated in Project Corona, a mission that involved the command and control of all military satellites, and, while such was classified, some information about Project Corona’s capabilities and missions had been released in approximately 1995. Specifically, he alleges that, while stationed at the Satellite Test Center in Sunnyvale, California, the data he was exposed to included images of active battlefields. Here, the Veteran explained that, due to the resolution of the satellite cameras, he was able to decipher between people and animals, and witnessed the death of many individuals. For example, he explained that, after napalm strikes, he would often see charred bodies. In this regard, the Veteran’s DD Form 214 reveals that he was a Data Processor/ Machine Operator with Detachment 1-Headquarters AFSCF. Furthermore, his military personnel records indicate that was granted a Top-Secret security clearance in November 1968. As an initial matter, the Board acknowledges that the Veteran is competent to report what he experienced in service, such as recounting events that he witnessed or feelings that he experienced. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465 (1994). However, due to the nature of his claimed stressor, such must be corroborated by evidence other than his own testimony. In this regard, the Board notes that the Veteran did not engage in combat with the enemy and his claimed stressor does not relate to a fear of hostile military or terrorist activity as contemplated by the amended regulation. Specifically, in the promulgation of the new regulation, it was noted that such amendment acknowledged the inherently stressful nature of the places, types, and circumstances of service in which fear of hostile military or terrorist activities is ongoing. Furthermore, it was stated that the new rule would not cover a service member who learned of the death of another person when such death occurred remote from the service member in a location of hostile military or terrorist activity. Rather, the rule is intended to apply only when the veteran’s service is proximate in time and place to the traumatic event to which the veteran has responded with intense fear, helplessness, or horror. See 75 Fed. Reg. 39, 843 (July 13, 2010). In the instant case, the Board observes that the Veteran’s military personnel records, to include his DD Form 214, do not reveal that he received any combat awards, medals, or citations. Furthermore, such records indicate that the Veteran did not have any foreign service. In light of such facts, in August 2015, the AOJ made a formal finding that the information submitted by the Veteran regarding his in-service stressor event was insufficient to submit to the Joint Services Records Research Center (JSRRC) and/or insufficient to research the case for a military record. Here, the AOJ cited to Training Letter 10-05 with respect to fear-based stressors based on learning of a death which occurred remote from the veteran as contemplated by the regulation and discussed above. Therefore, the Board finds that such claimed stressor falls outside of the regulation pertaining to stressors related to fear of hostile military activity, and as such, this uncorroborated account cannot serve as a verified stressor for the purpose of establishing service connection for PTSD. The Board acknowledges that the October 2013 VA examiner and the Veteran’s VA treatment providers have diagnosed PTSD and notes that, if a veteran has received a diagnosis of PTSD from a competent medical professional, VA must assume that the diagnosis was made in accordance with the appropriate psychiatric criteria in regard to the adequacy of the symptomatology and the sufficiency of the stressor. Cohen v. Brown, 10 Vet. App. 128, 153 (1997). Nevertheless, VA may reject such a diagnosis on a finding that the preponderance of the evidence is against (1) the PTSD diagnosis, (2) the occurrence of the in-service stressor, or (3) the connection of the current condition to the in-service stressor. The adequacy of a stressor, sufficiency of symptomatology, and diagnosis are all medical determinations. Cohen, 143-44. In the instant case, the Board finds there is sufficient evidence to reject the PTSD diagnoses contained in the record as such is based on an unverified stressor. Specifically, the October 2013 VA examiner found that the Veteran met all of the diagnostic criteria for PTSD, and noted the Veteran’s report that his work was classified made it difficult to gather specific details regarding his stressor; however, he found the Veteran’s presentation to be credible, sincere, and consistent with what would be expected in a veteran with PTSD. The examiner indicated that it should also be noted that no description of the stressor was evident in the Veteran’s claims file and his Air Force paperwork appeared to indicate that he was stationed in California during his military service. Here, the examiner explained that if the Veteran’s exposure to stressors was via electronic media (for example, being confronted with graphic images of death through video feeds), such would still meet the stressor criteria for a diagnosis of PTSD. Here, the examiner determined that the Veteran’s PTSD was related to a fear of military or terrorist activity. Furthermore, the examiner found that, based on the symptom onset and the fact that much of the Veteran’s guilt and distress related to reported experiences during his military service, it was more likely than not that his major depressive disorder was secondary to his PTSD. Similarly, it appears that the Veteran’s VA clinicians based their diagnoses on his reports regarding his in-service stressor with respect to Project Corona. However, the question of whether the Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991). Whether a claimed stressor is of sufficient gravity to cause or support a diagnosis of PTSD is a decision that is medical in nature. However, whether a claimed stressor actually occurred is a question of fact for adjudicators. The opinions that suggest that the Veteran experienced an in-service trauma are based on his own account of an in-service stressor that is otherwise unverified. The opinions do not identify any specific supporting evidence corroborating the assertion that the Veteran experienced the claimed in-service event. The Board, therefore, does not find that the opinions lend additional credibility to the Veteran’s accounts of an in-service stressor. Based on the foregoing, the Board finds that there is no competent and credible evidence corroborating the Veteran’s claimed stressor and, consequently, he does not have a diagnosis of PTSD based on a verified in-service stressor. Moreover, the Veteran has not shown any in-service event, disease, or injury resulting in a disability that would be the precursor to establish service connection and, as noted previously, the Veteran’s major depressive disorder was found to be secondary to his PTSD. Consequently, there is no probative evidence that such disorder is otherwise causally or etiologically related to any disease, injury, or incident during service. As such, service connection for an acquired psychiatric disorder, to include PTSD with major depressive disorder, is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD with major depressive disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he had bilateral hearing loss as a result of in-service noise exposure. Specifically, at the April 2016 Board hearing, he reported that, while in service as a computer/system operator, he was exposed to noises from extremely large computers, fully air-conditioned rooms, card readers, a paper decollator, and a shredder without hearing protection. In this regard, the Veteran indicated that, when using the shedder, he encountered an explosion whenever paper became stuck in the machine. Additionally, he noted that, following his discharge from service, he was never around the operation of machines as he was a computer programmer. Here, the Veteran explained that he was in relatively quiet surroundings. He further noted that he believed his hearing had become worse since he went into service. Consequently, the Veteran claims that service connection for bilateral hearing loss is warranted. The Board notes that the Veteran’s DD Form 214 shows that his primary military occupational specialty was Data Processor/Machine Operator, reflecting potential noise exposure during service. Service treatment records (STRs) indicate that, upon entrance to service in March 1968, examination revealed that the Veteran’s ears and drums were normal. On audiology testing, the examiner specifically noted that American Standards Association (ASA) units were utilized in the audiogram. Such auditory thresholds findings, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 -5 X 5 LEFT -5 -5 -5 X 10 In this regard, prior to January 1, 1967 ASA units were utilized in audiograms conducted by the service department, and after December 31, 1970, International Standards Organization-American National Standards Institute (ISO-ANSI) units were utilized. Therefore, the conversion to ISO-ANSI units is below: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 X 10 LEFT 10 5 5 X 15 During the Veteran’s February 1972 discharge examination, the examiner evaluated his ears and drums as normal. On audiology testing, the report revealed auditory thresholds findings, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 0 0 LEFT 20 10 5 15 20 An August 1992 private treatment record reflects an impression of essentially normal hearing bilaterally. In this regard, the auditory thresholds findings, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 10 20 LEFT 15 15 15 10 25 A January 2009 VA examination report, at which time the Veteran was being evaluated for tinnitus, indicates an audiogram that shows the following auditory thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 25 30 LEFT 15 15 25 25 40 A September 2013 VA treatment record reveals that the Veteran underwent a hearing aid orientation. An August 2014 private treatment record reflects an impression of bilateral mild-moderately severe sensorineural hearing loss. Auditory thresholds findings, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 50 45 60 LEFT 30 30 40 45 50 A May 2016 private treatment record notes that the private audiologist, L.V., was informed that the Veteran was referred by the VA, and per the contract and instructions, she was only to perform the hearing test and provide the results to the VA and the Veteran; and that no recommendations were to be made by her. In October 2013, the Veteran underwent a VA audiological examination. At such time, the examiner diagnosed bilateral sensorineural hearing loss for VA purposes under 38 C.F.R. § 3.385, but found that it was not related to his in-service noise exposure. As rationale for the opinion, the examiner noted that the Veteran’s entrance and discharge examinations revealed normal hearing bilaterally and no significant threshold shift beyond normal variability while in service had occurred. However, hearing loss need not be shown in service for service connection to be established; rather, service connection may be established for a current hearing disability with evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Here, such rationale did not consider a line of research conducted by Dr. Sharon G. Kujawa, which establishes the possibility of delayed-onset hearing loss. Specifically, such indicates, for instance, that “[a]coustic overexposure can cause a permanent loss of auditory nerve fibers without destroying cochlear sensory cells, despite complete recovery of cochlear thresholds (Kujawa and Liberman 2009), as measured by gross neural potentials such as the auditory brainstem response (ABR).” (From the abstract for Furman AC, Kujawa SG, Liberman MC (2013) Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates, J. Neurophysiol.110, 577-586). Thus, the Board finds that an addendum opinion is necessary. The matter is REMANDED for the following action: Return the record to the VA examiner who conducted the Veteran’s October 2013 audiological examination for an addendum opinion as to the etiology of the Veteran’s bilateral hearing loss. The record, to include a copy of this Remand, should be made available to, and be reviewed by, the examiner. If the October 2013 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a review of all the relevant evidence, to include the aforementioned in-service audiograms as converted to ISO-ANSI units, the examiner is requested to address the following inquiries: (A) Offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s diagnosed bilateral hearing loss is related to his military service, to include his acknowledged in-service noise exposure as a Data Processor/Machine Operator. In offering such opinion, the examiner should accept as true the Veteran’s in-service noise exposure. Additionally, the examiner should consider the line of research conducted by Dr. Sharon G. Kujawa (as noted above) regarding delayed onset hearing loss. The examiner is advised that the opinion provided must not be based solely on the lack of evidence of hearing loss in the Veteran’s STRs. (B) Did the Veteran’s bilateral hearing loss manifest within one year of his service discharge in April 1972, i.e., by April 1973. If so, please describe the manifestations. In offering the foregoing opinion, the examiner should consider the lay statements of record regarding the onset and continuity of symptomatology referable to the Veteran’s bilateral hearing loss. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel