Citation Nr: 18145682 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-21 870 DATE: October 29, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss is due to in-service noise exposure. 2. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is due to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1966 to Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1964, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system, and therefore a presumptive disability. The Board notes that in Fountain v. McDonald, 27 Vet. App. 258 (2015), the United States Court of Appeals for Veterans Claims determined that tinnitus is an “organic disease of the nervous system” subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. Alternatively, when a disease under 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 symptomology to establish service connection is limited only to those diseases listed under 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. Bilateral Hearing Loss and Tinnitus The Veteran claims that he is entitled to service connection for bilateral hearing loss and tinnitus due to his in-service noise exposure. The Board notes that the audiological examination dated January 2015 shows bilateral hearing loss and tinnitus disabilities for VA purposes. See 38 C.F.R. § 3.385. The Veteran’s military occupational specialty was infantryman, and he reported exposure to noise while working as a machine gunner in the Republic of Vietnam (Vietnam); therefore, it is likely that a person in such a specialty would have been exposed to excessive noise. The Veteran underwent a VA examination in January 2015. He reported difficulty hearing people around him. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 60 65 70 LEFT 30 30 65 75 75 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 84 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss. The Veteran also reported recurrent tinnitus. The examiner opined that the hearing loss and tinnitus was less likely than not caused by or the result of an event in military service. The examiner reasoned that there was no evidence of a permanent threshold shift or hearing loss in either ear during service, nor were there any reports of tinnitus. No further rationale was provided, and the examiner did not address the Veteran’s contention of acoustic trauma in service. Finally, of record are the Veteran’s lay statements. He claimed that while in service, he was the lead machine gunner for his company, and was never provided any hearing protection. He maintained that he did not have any difficulty hearing prior to service, but that he became hard of hearing upon separation. He suffered from hearing impairment for over 47 years. The Board finds the evidence is at least in relative equipoise as to whether the Veteran’s bilateral hearing loss and tinnitus are related to service. Although the January 2015 VA audiologist provided a negative nexus opinion, the Veteran has competently and credibly provided consistent statements regarding the onset of his bilateral hearing loss and tinnitus. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND For the reasons discussed below, the Board finds that a remand is warranted for the issues of entitlement to service connection for an acquired psychiatric disorder and a lumbar spine disability. Acquired Psychiatric Disorder The Veteran maintains that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran reported that his current mental health symptomology is related to the traumatic events he experienced in service. Regarding his in-service stressor, the Veteran reported that while serving in Vietnam, his company was ambushed, and his two commanding officers were killed. He further recounted another instance where his company was ambushed and one third of them were killed. Due to the Veteran’s combat service, as evidenced by him being awarded the Bronze Star for outstanding meritorious service in connection with ground operations against a hostile force in Vietnam, the Board concedes the Veteran’s in-service stressors. See 38 U.S.C. § 1154(b). Regarding his current mental health symptomology, in lay statements, the Veteran indicated that he experienced nightmares after coming home from service, and that these nightmares continue to this day. Further, in a March 2015 statement, the Veteran’s wife indicated that she noticed a difference in the Veteran upon his return from Vietnam; specifically, he had nightmares all the time. The Veteran was provided a VA psychiatric examination in January 2015. The examiner did not find the Veteran to have a diagnosis of PTSD, or of any other psychiatric disability. The Veteran reported in-service stressors involving directly experiencing traumatic events, such as his company being ambushed, with many being killed. Regarding his symptoms, the Veteran reported recurrent, involuntary, and intrusive memories of the traumatic events, and recurrent distressing dreams in which the content of the dream was related to the traumatic events. There was persistent avoidance of, or efforts to avoid, distressing memories, thoughts, or feelings about or closely associated with the traumatic events. Regarding negative alterations in cognitions and mood associated with the traumatic events, the Veteran experienced an inability to remember an important aspect of the traumatic event, persistent negative emotional state, and a markedly diminished interest or participation in significant activities. The Veteran also had sleep disturbance. The examining psychologist noted that although it was likely that the Veteran was diagnosed with PTSD within a few years after returning from Vietnam, the Veteran’s mental health symptomology appeared to have resolved over the years. Although the Veteran did not like crowds, the examiner did not find this to be attributed to PTSD. The VA examining psychologist concluded that although the Veteran had some symptoms shared with people who are diagnosed with PTSD, in his opinion, the Veteran did not meet the criteria for a diagnosis of PTSD. The Board finds the January 2015 VA examination to be inadequate, as it did not provide a sufficient explanation of the Veteran’s significant mental health symptomology. Accordingly, the Board finds that a remand is necessary in order to provide the Veteran an adequate mental health evaluation to properly address all of his symptomology. Lumbar Spine Disability The Veteran claimed that he is entitled to service connection for a lumbar spine disability. The Board notes that the Veteran has not been provided a VA examination for this claimed disability. In an April 2015 statement, the Veteran indicated that he first injured his back while jumping out of a helicopter in service. As the Veteran was serving in combat in Vietnam, his statements should be accepted as sufficient evidence of an in-service incurrence. See 38 U.S.C. § 1154(b). Further, the Veteran and his wife reported that he experienced back issues upon his separation from service. The Veteran sought private treatment for his back after service from a Dr. Sanborn. The Board notes that there is no indication in the record of an attempt to retrieve private medical treatment records from Dr. Sanborn. The Board finds that a remand is necessary to obtain any outstanding private medical treatment records related to the Veteran’s claim on appeal. Further, a remand is also necessary to afford the Veteran a VA examination for his lumbar spine disability. Accordingly, the matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. Sanborn, or any other private physician who treated the Veteran for his lumbar spine disability. 2. Regarding the Veteran’s lumbar spine disability, forward the Veteran’s electronic claims file to an appropriate clinician for an examination and opinion as to the nature and etiology of any currently diagnosed lumbar spine disability. It is left to the examiner’s discretion whether to examine the Veteran. Following the review of the claims file, the examiner should identify any currently diagnosed lumbar spine disability, and provide an opinion on the following: Whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed lumbar spine disability was caused by the Veteran’s reported in-service injury from jumping out of a helicopter. For purposes of this opinion, the examiner is asked to accept as true the Veteran’s reports of any in-service back injury while serving in combat. 3. Regarding the Veteran’s claimed acquired psychiatric disorder, schedule the Veteran for an appropriate examination to determine the nature and etiology of any currently diagnosed acquired psychiatric disorder. Following the review of the claims file, the examiner should identify any currently diagnosed acquired psychiatric disorder, to include PTSD, and provide opinions on the following: Whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed acquired psychiatric disorder, to include PTSD, was caused by the numerous conceded in-service stressors the Veteran experienced while serving in combat in Vietnam. In providing this opinion, the VA psychologist is requested to specifically address the cause and etiology of the following reported mental health symptomology: a) Recurrent, involuntary, and intrusive distressing memories of the traumatic events b) Recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event c) Avoidance of, or efforts to avoid, distressing memories, thoughts, or feelings about or closely associated with the traumatic events d) Avoidance of, or efforts to avoid, external reminders that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event e) Sleep disturbance A complete rationale for all opinions should be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel