Citation Nr: 18148689 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 17-04 464 DATE: November 8, 2018 ORDER Service connection for posttraumatic stress disorder (PTSD), with depressive disorder, is granted. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED Service connection for hypertension, to include as secondary to PTSD, is remanded. Service connection for erectile dysfunction, to include as secondary to PTSD, is remanded. FINDINGS OF FACT 1. Resolving all doubt in his favor, the Veteran has current diagnoses of PTSD and depressive disorder, which have been related to his military service. 2. The Veteran was exposed to loud noise during service, including from artillery fire, given his military occupational specialty (MOS) of radio mechanic in Vietnam. 3. The Veteran’s service treatment records show impaired hearing upon enlistment examination and the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. 4. Resolving all doubt in his favor, the Veteran’s current bilateral hearing loss is related to his military service. 5. Resolving all doubt in his favor, the Veteran has a current diagnosis of tinnitus which has been related to his now service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.389. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to September 1970. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from January 2015 and May 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, and Winston-Salem, North Carolina, respectively. Jurisdiction currently remains with the RO in Winston-Salem, North Carolina. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the Board must broadly construe claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has alleged additional psychiatric symptoms to those of his originally claimed PTSD, and has been diagnosed with depressive disorder. Accordingly, the issue on the title page reflects the expanded issue. Service Connection Under the relevant laws and regulations, 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 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In addition, certain listed chronic diseases, such as psychosis as well as bilateral hearing loss and tinnitus (both found to be organic diseases of the nervous system), may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate that a condition was noted during service; (2) there is a post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). The “clear and unmistakable evidence” standard is an onerous one; it means that the evidence cannot be misinterpreted and misunderstood, i.e., it is undebatable, obvious, or manifest. See Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012). In determining whether service connection 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Service connection for PTSD, with depressive disorder, is granted. Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). A Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor if: (1) the claimed stressor is related to his fear of hostile military or terrorist activity; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service; and (3) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran’s symptoms are related to the claimed stressor. 38 C.F.R. § 3.304 (f)(3). 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. In the instant case, the first element of service connection is met, as the Veteran has a current diagnosis of PTSD and depressive disorder. See September 2018 Private Medical Opinion. The Veteran served in Vietnam as a field radio mechanic and repairman. The Veteran’s DD 214 reflects that he was awarded the Vietnam Service Medal, Vietnam Campaign Medal, as well as the Army Commendation Medal (with oak leaf cluster). Thus, the Board acknowledges that the Veteran did serve in Vietnam, as it is consistent with the evidence of record. In connection with this claim, the Veteran was afforded a VA psychiatric examination in October 2014. Significantly, the examiner diagnosed unspecified depressive disorder as well as mild alcohol use disorder and found that the Veteran did not meet the criteria for a PTSD diagnosis. The examiner also wrote that he could not find a connection between the Veteran’s psychiatric symptoms, with the exception of his nightmares which did not result in a disability, to the Veteran’s military service. In contrast to the October 2014 VA opinion, a September 2018 private examiner, Dr. C. C., diagnosed both PTSD and depressive disorder and opined that the Veteran’s current PTSD and depressive disorder were at least as likely as not caused by traumatic events experienced during his military service in Vietnam. He noted the Veteran’s reports of in-service stressors, including exposure to mortar attacks and enemy fire. Dr. C. C. based this opinion on reported symptoms such as isolation, hypervigilance, nightmares, and depressed mood. He further explained that the Veteran met the full diagnostic criteria for both PTSD and depressive disorder. The Board finds that this opinion reflects a thorough evaluation of the Veteran, including the reported in-service stressors, and contains a sufficient rationale to support its conclusion. It also refers to diagnostic criteria in support of its findings. Therefore, it is afforded probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board is persuaded that service connection is warranted here. The September 2018 private medical opinion clearly supports a diagnosis of PTSD related to military service, and while the October 2014 VA examiner did not find the Veteran to have PTSD, (he diagnosed depressive disorder), the evidence is at least in equipoise on the question at issue. Resolving that question in favor of the Veteran, presents a basis upon which to establish service connection for PTSD, with depressive disorder. The benefit sought on appeal is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. 2. Service connection for bilateral hearing loss is granted. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. 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.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In a June 2016 Notice of Disagreement, the Veteran’s representative noted that the Veteran was exposed to the noise of incoming rockets, explosions, machine guns, and weapons fire during his service as a radio mechanic in Vietnam. Military personnel records corroborate the Veteran’s MOS of radio mechanic as well as his reported service in Vietnam. Thus, the Board finds the reports of noise exposure to be credible. The Veteran was found to have “impairment of hearing” on his October 1968 entrance examination. Significantly, the Veteran’s October 1968 enlistment examination shows that the examiner assigned him a “2” rating for “H” under the PULHES profile system, indicating his hearing was impaired. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); ((observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran’s capacity and stamina (“P”); upper extremities (“U”); lower extremities (“L”); hearing (“H”); eyes (“E”) and psychiatric condition (“S”); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). However, the Veteran’s September 1970 separation examination shows normal hearing. The Veteran submitted an initial claim for service connection for bilateral hearing loss in December 2015. In connection with this claim, he was afforded a VA audiological examination in April 2016. Audiometric testing at that time revealed the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 35 40 40 45 65 Left Ear 40 40 45 55 70 Puretone Threshold Average Right Ear 48 Left Ear 53 Speech discrimination Right Ear 96% Left Ear 100% The April 2016 VA examiner determined that the Veteran’s hearing loss was less likely than not related to his military service. As rationale for this opinion, the examiner wrote that normal hearing thresholds for both ears were established at the time of military separation in September 1970. There was no documentation of acoustic injury which would result in hearing loss or tinnitus and no documentation to support the conclusion that the Veteran’s hearing loss of tinnitus is caused by, or the result of, noise exposure during active military service. There was also no evidence of chronicity or continuity of care regarding hearing loss or tinnitus during the greater-than forty-year period since military separation. Unfortunately, the April 2016 VA examiner failed to provide an opinion as to whether the “impairment of hearing” noted on the October 1968 enlistment examination clearly and unmistakably pre-existed service and, if so, whether this condition was aggravated by the Veteran’s service. In the June 2016 Notice of Disagreement, the Veteran’s representative noted medical treatise indicating that acoustic trauma causes hearing loss and damage to hearing from loud noise exposure may be delayed and take years to surface. Acoustic overexposures causing moderate, but completely reversible, threshold elevation, leave cochlear sensory cells intact, but cause acute loss of afferent nerve terminals and delayed degeneration of the cochlear nerve. S.G. Kujawa & M.C. Liberman, Adding insult to injury: cochlear nerve degeneration after “temporary noise-induced hearing loss, 29 The Journal of Neuroscience 45, 14077-14085 (2009). This primary neurodegeneration should add to difficulties hearing in noisy environments, and could contribute to tinnitus, hyperacusis and other perceptual anomalies associated with inner ear damage. Id. Data suggest that pathologic but sub-lethal changes initiated by early noise exposure also render the inner ears significantly more vulnerable to aging. .G. Kujawa & M.C. Liberman, Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth, 26 The Journal of Neuroscience 2115-2123 (2006). In this case, medical evidence shows a current bilateral hearing loss disability for VA compensation purposes pursuant to 38 C.F.R. § 3.385. There is also evidence of both in-service hearing loss as well in-service noise exposure. In this regard, the Veteran alleges military acoustic trauma including artillery and gunfire. The Veteran is competent to report such symptoms as decreased hearing acuity that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In addition, based upon the evidence available, the Board presumes the occurrence of the Veteran’s in-service acoustic trauma. The evidence also suggests a link between the Veteran’s hearing loss and his military service. Significantly, while the medical treatise evidence submitted by the Veteran’s representative is not specific to the Veteran, it does contradict the rationale provided by the April 2016 VA examiner. Furthermore, the April 2016 VA examiner failed to consider both the in-service findings of hearing loss as well as the in-service acoustic trauma. Given the in-service findings of hearing loss, the Veteran’s presumed in-service acoustic trauma during his military service along with the medical treatise evidence submitted by the Veteran’s representative, the Board finds that there is an approximate balance of positive and negative evidence in this appeal. 38 C.F.R. § 3.303 (d). Resolving all remaining doubt in the Veteran’s favor, the Board concludes that service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b). 3. Service connection for tinnitus is granted. The Veteran contends that his tinnitus is due to his military service. As above, the Veteran contends that he was exposed to significant noises during his military service and the Veteran’s claimed in-service noise exposure has been conceded. While service treatment records are negative for tinnitus, as above, they do show that the Veteran was found to have impaired hearing upon enlistment examination. In December 2015, the Veteran submitted a claim for service connection for tinnitus and he was afforded a VA audiological examination in April 2016. At the time of the examination, the Veteran reported that he was unsure when he first began experiencing tinnitus. The examiner diagnosed tinnitus and opined that this was less likely than not caused by the Veteran’s military service. However, the April 2016 VA examiner opined that the Veteran’s tinnitus was at least as likely as not (50 percent probability or greater) a symptom associated with hearing loss, as tinnitus is known to be a symptom associated with hearing loss. Upon review of the evidence, the Board finds that service connection for tinnitus is warranted. As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus. Furthermore, there is medical evidence that the Veteran’s tinnitus is related to the Veteran’s now service-connected bilateral hearing loss. Significantly, the April 2016 VA examiner found that the Veteran’s tinnitus is associated with his bilateral hearing loss. Accordingly, the Board finds that tinnitus is related to his service-connected bilateral hearing loss. Therefore, service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; Gilbert, supra. REASONS FOR REMAND Service connection for hypertension and erectile dysfunction, to include as secondary to PTSD, are remanded. Regarding the issues of hypertension and erectile dysfunction, in his December 2015 claim, the Veteran has contended that these disabilities are secondary to his PTSD, to include medications used to treat his PTSD. As above, the Board has granted service connection for PTSD. There is no dispute that he has current diagnoses of both hypertension and erectile dysfunction. Specifically, VA treatment records show a diagnosis of hypertension as early as September 2016 and a diagnosis of erectile dysfunction as early as March 2015. However, no medical opinion has yet been obtained regarding the etiology of these disabilities. Given the above, the Veteran should be afforded appropriate VA examinations with medical opinions determining whether the Veteran’s current hypertension and/or erectile dysfunction are secondary to and/or aggravated by his newly service-connected PTSD. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. Schedule the Veteran for a VA examination to obtain a medical opinion regarding whether the Veteran’s hypertension is related to his period of service or to his service-connected PTSD. The entire claims file must be provided to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner is asked to address the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is caused by or related to his service-connected PTSD? b) If not caused by or related to the Veteran’s service-connected PTSD, is it at least as likely as not that the hypertension was aggravated (permanent worsening of the underlying disability beyond natural progress) by the service-connected PTSD? If aggravation by a service-connected disability is found, then the examiner should quantify the degree of such aggravation, if possible. (c) If not caused by, related to, or aggravated by the service-connected PTSD, is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension manifested during, or as a result of active military service? A complete rationale for all opinions offered should be provided. 3. Schedule the Veteran for a VA examination to obtain a medical opinion regarding whether the Veteran’s erectile dysfunction is related to his period of service or to his service-connected PTSD. The entire claims file must be provided to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner is asked to address the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction is caused by or related to his service-connected PTSD? b) If not caused by or related to the Veteran’s service-connected PTSD, is it at least as likely as not that the erectile dysfunction was aggravated (permanent worsening of the underlying disability beyond natural progress) by the service-connected PTSD? If aggravation by a service-connected disability is found, then the examiner should quantify the degree of such aggravation, if possible. (c) If not caused by, related to, or aggravated by the service-connected PTSD, is it at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction manifested during, or as a result of active military service? A complete rationale for all opinions offered should be provided. 4. Readjudicate the appeal. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel