Citation Nr: 18143948 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 14-43 855 DATE: October 22, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), panic disorder, and chronic depressive disorder, is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s current bilateral hearing loss is related to in-service acoustic trauma. 2. The evidence is in relative equipoise as to whether the Veteran suffers from an acquired psychiatric disability that is related to stressors suffered in Vietnam. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385, 4.85 (2017). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the U.S. Army from April 1967 to October 1967, and from May 1968 to July 1969. During this time, he was awarded the National Defense Service Medal and the Vietnam Service Medal. These matters come to the Board of Veterans’ Affairs (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in Lincoln, Nebraska. In June 2018, the Veteran presented testimony at a Travel Board hearing before the undersigned Veterans’ Law Judge. A transcript of that hearing has been reviewed and associated with the claims file. The Board notes that the record reflects various psychiatric diagnostic impressions, including PTSD, panic disorder, chronic major depression, and depressive disorder with mood congruent psychotic features. See, e.g., December 2014 Lakota Lodge Counseling Clinic Correspondence (noting that the Veteran was diagnosed with PTSD and was also being treated for anxiety and depression); December 2015 Private Post-Traumatic Stress Disorder Disability Benefits Questionnaire (diagnosing the Veteran with PTSD, panic disorder with agoraphobia, and chronic major depression with melancholic features, and further indicating that the symptoms were too intertwined to distinguish the specific diagnosis to which each symptom belonged); January 2017 Private Psychological Report (diagnosing the Veteran with delayed expression PTSD and persistent depressive disorder with mood congruent psychotic features). Because the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim and reported symptoms and all other information of record, the Board finds that it is more appropriate to characterize his mental health claims broadly, as a single claim of entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §1131; 38 C.F.R. § 3.303(a). In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires competent evidence showing: (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 - the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board will assess the competence and credibility of lay statements as well. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In adjudicating claims for VA benefits, the burden of proof only requires an approximate balance of the evidence for and against a claim. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is unique to the VA adjudicatory process, and the nation, in recognition of our debt to our veterans, has taken upon itself the risk of error in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this vein, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See, e.g., Struck v. Brown, 9 Vet. App. 145, 152 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). 1. Entitlement to service connection for bilateral hearing loss The Board emphasizes that the Veteran has been previously granted service connection for tinnitus. See August 2014 Rating Decision. The Veteran maintains that he has a current bilateral hearing loss disability that arose at the same time, in the same way, and from the same underlying injury as service-connected tinnitus. He specifically asserts that as an ammunitions storage specialist, he developed a hearing pathology manifested by symptoms including decreased hearing and tinnitus as a result of in-service exposure to explosions and traumatic noise, including as the result of helicopter noise, mortar explosions, and gunfire during his combat service in Vietnam. See, e.g., May 2014 Statement in Support of Claim (VA Form 21-4138) (asserting that he “has ringing in [his] ears” and “difficulty of hearing sounds and voices” since his combat service in Vietnam); June 2018 Hearing Transcript. In this case, the Veteran has been diagnosed with bilateral sensorineural hearing loss. See June 2018 Hearing Clinic Audiological Evaluation. Additionally, the audiogram performed in conjunction with this evaluation confirms that the Veteran has a current bilateral hearing loss disability for VA purposes, as the Veteran had bilateral puretone threshold levels of 40 decibels or greater at the frequencies of 2000, 3000, and 4000 Hertz. See 38 C.F.R. § 3.385 (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.); Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As noted, the Veteran has indicated in statements and testimony adduced throughout the pendency of the claim that he sustained repeated exposure to traumatic noise due to mortar explosions and weapons fire during his active service, including specifically during combat in Vietnam. See, e.g., May 2014 Statement in Support of Claim (VA Form 21-4138); June 2018 Board Hearing Transcript. In this regard, he is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). Furthermore, the probability level of noise exposure was conceded as “highly probable” in his August 2014 VA hearing examination. See August 2014 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) (reflecting that the Veteran reported that he worked as a Heavy Equipment Operator in Vietnam, and basing the probability level as “highly probable” based on the Duty MOS Noise Exposure Listing in FL 10-35). Accordingly, given the places, types, and circumstances of the Veteran’s service, including his military occupation specialty as an ammunitions storage specialist and his service in Vietnam, the Board finds the Veteran’s statements concerning his combat service to be competent and credible. See VAOPGCPREC 12-99 (October 18, 1999) (reflecting that, where there is no medal specifically indicating combat service, determinations as to whether the Veteran engaged in combat should be made on a case-by-case basis); M21-1, Part III, Subpart iv, Chapter 4, Section H.6.b. (updated March 17, 2017) (reflecting that “[t]here are no limitations as to the type of evidence that may be accepted to confirm engagement in combat” and noting that “[a]ny evidence that is probative of (serves to establish the fact at issue) combat participation may be used to support a determination that a Veteran engaged in combat”). See also 38 U.S.C. § 1154(a) (Due consideration shall be given to the places, types, and circumstances of a Veteran’s service). It is thus highly probable that he was engaged in combat as he described. See 38 C.F.R. § 3.102. Consequently, exposure to acoustic trauma is certainly consistent with the circumstances, conditions, and hardships of the Veteran’s service. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d) (2016). As such, the Veteran’s lay assertions of acoustic trauma are sufficient to establish in-service hazardous noise exposure. Id.; see also Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). Although the Veteran’s entrance and separation examinations are silent for complaints and/or diagnoses of bilateral hearing loss, the Veteran has asserted in statements submitted throughout the pendency of the claim that he first experienced a hearing pathology, including decreased hearing, immediately following his active military service, and that his auditory symptoms have progressively worsened since that time. See Hensley, 5 Vet. App. at 159-160 (holding that, when audiometric test results do not meet the regularity requirements for establishing a “disability” at the time of the Veteran’s separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service). In this regard, the Veteran is competent to report observing a decline in his hearing acuity since serving in combat in Vietnam, as hearing loss is certainly a condition with “unique and readily identifiable features” that is “capable of lay observation.” See Jandreau, 492 F. 3d at 1376-77; see also Barr, 21 Vet. App. at 309. Accordingly, the Board finds the Veteran’s statements concerning the in-service onset of his auditory symptomatology to be credible. See Caluza v. Brown, 7 Vet. App. at 711, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Regarding the third element of secondary service connection, medical nexus, the record contains conflicting medical opinions regarding the link between the Veteran’s current bilateral hearing loss disability and his in-service noise exposure. A VA examiner previously opined in August 2014 that the Veteran’s bilateral sensorineural hearing loss was not as least as likely as not related to his active service. See August 2014 VA Hearing Loss and Tinnitus DBQ. In arriving at this conclusion, the examiner cited the to the fact that the Veteran’s enlistment and separation audiograms reflected normal hearing with no significant shift in hearing between the audiograms for either ear. Id. However, the Veteran supplied a more recent contrasting private medical opinion linking his current bilateral hearing loss to his in-service noise exposure. See December 2015 Hearing Clinic Audiological Evaluation. The Veteran’s private doctor opined that it was “quite likely that the noise exposure [the Veteran] suffered during [his] military service was the beginning of [his] hearing loss and tinnitus.” Id. The Veteran’s doctor further elaborated that the type and degree of the Veteran’s hearing level was “consistent with noise induced hearing loss.” Id. Certain elements of the multiple positive and negative medical opinions in this case are probative. Both sets of evidence have respective strengths and weaknesses. In such situations, the benefit of the doubt is resolved in the Veteran’s favor. In determining whether compensation is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, given the evidence of a current hearing loss disability and in-service noise exposure, and resolving the benefit of the doubt in the Veteran’s favor with respect to the medical evidence of a nexus between the Veteran’s currently diagnosed hearing loss and his active service, the Board finds that his hearing loss is at least as likely as not related to his in-service noise exposure. 38 C.F.R. §§ 3.303(a); Holton, 557 F.3d at 1366; Shedden, 381 F.3d at 1166-67. Therefore, the Board finds that service connection for the Veteran’s hearing loss is warranted. 2. Entitlement to service connection for an acquired psychiatric disability The Veteran also maintains that he has a current psychiatric disability that is attributable to stressors incurred during his active duty service. First, as concerning the requisite current diagnosis, the Veteran has submitted medical evidence, including private medical examinations, that reflects various psychiatric diagnoses, including PTSD, panic disorder, chronic major depression, and depressive disorder with mood congruent psychotic features. See, e.g., December 2014 Lakota Lodge Counseling Clinic Correspondence (noting that the Veteran was diagnosed with PTSD and was also being treated for anxiety and depression); December 2015 Private Post-Traumatic Stress Disorder Disability Benefits Questionnaire (diagnosing the Veteran with PTSD, panic disorder with agoraphobia, and chronic major depression with melancholic features); January 2017 Private Psychological Report (diagnosing the Veteran with delayed expression PTSD and persistent depressive disorder with mood congruent psychotic features). Accordingly, the medical evidence establishes that the Veteran has a current acquired psychiatric disability. See Holton, 557 F.3d at 1366. Second, as concerning an in-service incurrence, the Board notes that the Veteran’s service treatment records are silent for complaints of or treatment for psychiatric symptomatology. Nevertheless, in statements and testimony adduced throughout the pendency of the claim, the Veteran has asserted that he experienced psychologically stressful events during his active duty service in Vietnam. See, e.g., May 2014 Statement in Support of Claim for Service Connection for PTSD (VA Form 21-0781) (reflecting that while in Vietnam, the Veteran saw fatally wounded Vietnamese men, women, and children; that he witnessed multiple wounded soldiers being airlifted; that he lost an extremely close friend in a plane crash and then attended a traumatic memorial service for this friend; and that he endured continuous explosions and enemy fire); December 2015 Statement in Support of Claim (VA Form 21-4138) (reflecting that a fellow member of the Veteran’s unit recalled that the Veteran was assigned nightly perimeter duty in Vietnam and was exposed to constant fire and mortar attacks, and further confirmed the death of and memorial service for the Veteran’s close friend in a plane crash in Vietnam); June 2018 Board Hearing Transcript (noting the Veteran described the constant enemy attacks were because they had “all that ammunition” and that the enemy “wanted to blow it up”). In this regard, he is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran’s service personnel records, including his DD Form 214 and DA Form 20 confirm that he served in Vietnam from October 1968 to July 1969, for which service he was awarded the Vietnam Service Medal. Also, his service personnel records reflect that his principal duty was as an Ammunition Storage Specialist (Military Occupational Specialty (MOS) 55B20) with the 295th Ordinance Company, further supporting his assertions. Thus, in the absence of evidence establishing the Veteran’s account as not credible, reasonable doubt will be resolved in his favor, and the occurrence of the claimed stressful events during his service is established, as it is consistent with the circumstances of his service. See 38 C.F.R. § 3.102. See also 38 U.S.C. § 1154(a) (Due consideration shall be given to the places, types, and circumstances of a Veteran’s service). Accordingly, an in-service injury or incurrence is established. See Holton, 557 F.3d at 1366. Finally, as to the third element, that of a nexus between the Veteran’s current acquired psychiatric disorder and the in-service stressor, the record contains conflicting medical opinions regarding the link between the Veteran’s psychiatric disability and stressors related to his active service in Vietnam. A VA examiner previously opined in August 2014 that the Veteran did not have any mental disorders that conformed with DSM-5 criteria. See August 2014 VA Initial Post-Traumatic Stress Disorder DBQ. In arriving at this conclusion, the examiner indicated that the Veteran would not provide a response as to the nature of his in-service stressors because he had previously spoken about them with another doctor. Id. The examiner also indicated that the Veteran did not provide a response to the PTSD Diagnostic Criteria section of the DBQ for the same reasons. Id. He further noted that when asked how the stressors affected him, the Veteran replied that he could manage if he didn’t talk about it or think about it. Id. However, the Veteran supplied contrasting medical evidence, including a more recent private medical opinion, linking his current psychiatric symptoms to his in-service stressors. See January 2017 Private Psychological Report (diagnosing the Veteran with PTSD and persistent depressive disorder with mood congruent psychotic features, and opining that the Veteran’s conditions were as a result of traumatic incidents that he experienced while service in Vietnam). The Veteran’s private doctor also noted that the Veteran had exhibited ongoing avoidance behaviors, irritability, hypervigilance, sleep disturbances, concentration issues, and feelings of estrangement and detachment, among other symptoms. Id. In particular, the Board notes that the Veteran’s private doctor based these determinations on a review of the claims file, the Veteran’s reported history, and a thorough psychological assessment of the Veteran. The January 2017 Private Psychological Report and opinion is highly probative, as it represents the informed conclusion of a medical professional supported by a thorough explanation and based on a review of the Veteran’s medical history, the clinical findings made on examination, and the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning); Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail and persuasiveness, and the physicians’ access to a Veteran’s medical records). As such, the January 2017 Private Psychological Report and opinion carries significant probative weight in the Board’s determination. See Caluza, 7 Vet. App. at 506 (1995). Accordingly, given the medical evidence diagnosing a current psychiatric disability, considering the Veteran’s credible reports of experiencing stressful events during his active service, and in light of the probative medical evidence of a nexus between the Veteran’s current psychiatric symptomatology and the claimed in-service stressors, the Board finds that the evidence is at least in equipoise as to whether his current acquired psychiatric disability is related to his active service. See 38 C.F.R. §§ 3.303(a); Holton, 557 F.3d at 1366; Shedden, 381 F.3d at 1166-67. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for and acquired psychiatric disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel