Citation Nr: 18156675 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-45 923 DATE: December 11, 2018 ORDER Entitlement to service connection for a bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for unspecified depressive disorder is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss is attributable to his active service. 2. Resolving reasonable doubt in the Veteran’s favor, his tinnitus at least as likely as not had its onset in service. 3. The Veteran’s symptoms of his service-connected PTSD and unspecified depressive disorder have been medically described as being “intertwined such that clear differentiation cannot be made” and, resolving reasonable doubt in the Veteran’s favor, his unspecified depressive disorder is attributable to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 3. The criteria for service connection for unspecified depressive disorder have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f)(3), 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service as a field artillery soldier with the United States Army from March 1968 to March 1970. The Veteran’s service records reflect that he is a Vietnam combat veteran who was awarded the Army Commendation Medal and Air Medal. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran’s claim for entitlement to service connection for hearing loss, tinnitus, post-traumatic stress disorder (PTSD), and major depressive disorder. The Veteran filed a timely notice of disagreement (NOD) in July 2014. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in February 2018. A transcript of the hearing is associated with the electronic claims file. The Board notes that during the pendency of this appeal, in a May 2016 rating decision issued by the RO, the Veteran was granted entitlement to service for PTSD, evaluated at the rate of 30 percent with an effect date of May 3, 2016. January 2016 Veteran lay statements, identifying additional in-service stressors, was added to the Veteran’s claims file in August 2016. The Veteran did not file a NOD within one year of the rating decision. Although the Veteran testified in the February 2018 hearing that he did not agree with the PTSD initial rating, a specific claim in the form prescribed for increase ratings has not been filed. See 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a). Moreover, the testimony is not timely to be considered an NOD. Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Neither the Veteran nor his representative identified any other shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). Service Connection Generally, to establish service connection a Veteran must show: “(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 incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009). In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1). 1. Entitlement to service connection for bilateral hearing loss 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. 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). VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, 5 Vet. App. at 159. The Veteran had an enlistment audiological evaluation in March 1968. However, because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. However, the audiometric test data card for a test administered in March 1970 concurrent with discharge from service indicated that the ISO standard was used. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 5000 6000 add 15 15 10 10 10 5 10 10 A March 1968 induction examination report shows pure tone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -10 (0) -10 (0) -10 (0) -10 (-5) LEFT -10 (5) -5 (5) -10 (0) -10 (0) -10 (-5) See Service treatment records at p.7 of 60. A March 1970 separation examination report shows pure tone thresholds in decibels (ISO standard) were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 40 30 20 LEFT 15 20 10 20 10 See Service treatment records at p.15 of 60. Because the Veteran’s pure tone threshold was 40 decibels at the frequency of 2000 hertz and 30 decibels at 3000 Hz in the right ear and increased thresholds by 10 to 15 decibels in both ears at various frequencies, the testing suggested that the Veteran had some degraded or abnormal hearing acuity during service. See 38 C.F.R. § 3.385 (2017). In a March 1970 discharge medical history questionnaire, the Veteran reported hearing loss, but the examiner made no comments. Post-service, the earliest record in the claims file showing hearing loss is the November 2014 VA hearing evaluation, in which the Veteran was diagnosed with mild to moderately-severe sensorineural hearing loss. During the November 2014 hearing evaluation, the Veteran reported that his hearing had “gradually gotten worse over the last several years.” The Veteran also reported that he “was in the military for two years with significant noise exposure to include artillery” and that outside of the military he has “worked around heavy equipment his entire life.” The audiologist noted that the Veteran speech discrimination testing at suprathreshold was 92 percent, bilaterally. See Capri Records, received January 2016 at p.77 of 411. In the February 2018 hearing, the Veteran testified he operated 105 Howitzer and 155, 109, eight-inch artillery pieces, as well as traveled around Vietnam in Huey and Chinook Helicopters. The Veteran testified that hearing protection was provided but many did not use them “because we couldn’t hear the enemy.” The Veteran’s service records reflect that he served as a field artillery soldier during the Vietnam War. As an initial matter, based on the Veteran’s occupational specialty in service, the Board concedes high levels of noise exposure in service. In April 2016, the RO requested a hearing examination for the Veteran. The RO noted that verification of the Veteran serving in Vietnam “with an MOS in the Artillery, therefore, military noise exposure is conceded.” The RO requested an examination and opinion regarding the etiology of the claimed hearing loss and tinnitus. In May 2016 the Veteran was afforded a VA hearing examination. The May 2016 VA audiological examination report shows pure tone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 30 40 40 LEFT 25 15 30 40 45 Speech discrimination scores were 96 and 92 percent in the right and left ears respectively. Because the Veteran’s pure tone thresholds were 40 decibels or more at the frequencies 3000 and 4000 hertz, the Veteran is shown to have bilateral hearing loss for VA regulatory purposes. See 38 C.F.R. § 3.385 (2017). The May 2016 VA examiner confirmed the Veteran’s diagnosed bilateral sensorineural hearing loss, but opined the right ear hearing loss was at less likely as not service connected because “this pt has only a mild loss in each ear for the frequencies considered in rating decisions. As he left the military over 46 yrs ago, if there had been any loss in 1970, his hearing would be much poorer than it is at this time.” The examiner further stated, “Also, had there been ANY hearing loss at separation, his hearing today would be poorer than the mild loss he has.” The VA examiner goes on to state, “This pt had normal hearing at enlistment and normal hearing at separation but for a 40dB threshold at 2K. However, this test cannot be considered reliable/valid as today, over 46 yrs after leaving the military, this threshold at 2K is BETTER than at separation 3-14-70.” The examiner did not discuss the difference in November 2014 (92 percent) and May 2016 (96 percent) speech discrimination scores. The basis for the VA examiner’s negative opinion was the determination that the March 1970 hearing test “was not reliable/valid as today” because the May 2016 examination was better than the March 1970 separation examination. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the May 2016 negative nexus opinion to warrant less probative weight. First, the examiner invalidated the portion of the March 1970 examination results which showed hearing loss at the frequency of 2000 Hz, but used the remaining results as a basis for denying service connection. Second, the examiner did not comment on the increase in thresholds of 10 to 15 decibels over the period of active service or the Veteran’s report on his discharge history questionnaire that he sensed a reduction in hearing. Third, the VA examiner commented on apparent improvement using one measurement at one frequency in one ear and did not comment on the apparent gradual increase at other points of measurement. Lastly, the examiner made no mention of the nature of the Veteran’s combat noise exposure. The evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss is attributable to his active service. Because (1) the Veteran’s bilateral hearing pure tone thresholds upon separating from the service were 40 decibels or greater at one frequency in one ear and increased at other frequencies in both ears, which indicated some hearing loss during service; (2) he had hazardous noise exposure in service; and (3) he currently has pure tone thresholds of 40 decibels or greater and at least three frequencies are at 26 decibels or greater, resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s entitlement to service connection for bilateral hearing loss is warranted, and the claim is granted. 2. Entitlement to service connection for tinnitus Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an “organic disease of the nervous system” under 38 C.F.R. § 3.309(a) where there is evidence of in-service acoustic trauma and a continuity of symptomatology from service. See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran received a VA hearing evaluation in November 2014. During the November 2014 evaluation, the Veteran reported experiencing “recurrent tinnitus in his left ear only.” The Veteran was afforded a VA examination in May 2016. During the examination the Veteran reported bilateral tinnitus occurring “2-3 times each day and varies in duration” and an onset of “a long time.” Tinnitus is defined as “a noise in the ears, such as ringing.” See Dorland’s Illustrated Medical Dictionary 1930 (32nd ed. 2012). The Veteran reported is competent to report tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (stating that “ringing in the ears is capable of lay observation”). In addition, it has been noted that both the RO and the Board have conceded to the Veteran’s in-service noise exposure. The VA examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure because “no link in time to the military he left in 1970”. The Veteran was exposed high levels of noise and is competent to report as the onset and continuity of symptomatology. Upon review, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s tinnitus at least as likely as not had its onset in service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the Board concludes that the criteria for entitlement to service connection for tinnitus have been met and, in this regard, the Veteran’s claim is therefore granted. 3. Entitlement to service connection for unspecified depressive disorder In a July 2014 lay statement, the Veteran stated, “all of these were service incurred…depression loosing [sic] friends.” In May 2016 the Veteran was afforded a VA examination. The Veteran was diagnosed with PTSD and unspecified depressive disorder. The Veteran reported seeing “his friend and fellow soldier wounded by small arms fire in combat 20 yards away.” The examiner established that the event occurred in-service. See Capri at p.9 of 207, receipt date of May 27, 2016. The examiner indicated that the Veteran’s symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood actively apply to the Veteran’s diagnoses. The examiner also indicated that it was not possible to differentiate what portion of each symptom was attributable to each diagnosis, noting “Veteran’s symptoms of PTSD and Unspecified Depressive Disorder intertwine such that clear differentiation cannot be made.” Further stating, “Veteran’s symptoms of PTSD, including recurrent memories and dreams of combat in Vietnam, psychological distress when exposed to situations reminding him of combat, avoidance of such situations, decreased social interaction, restricted affect, insomnia, hypervigilance and exaggerated startle response and Unspecified Depressive Disorder cause mild occupational and social impairment only during unusually stressful periods.” In May 2016, the RO granted the Veteran service connection only for PTSD. The examiner confirmed the occurrence of the reported in-service event. The examiner concluded that all the Veteran’s symptoms are connected to the claimed in-service event. The Veteran’s symptoms of his service-connected PTSD and unspecified depressive disorder have been medically described as being “intertwined such that clear differentiation cannot be made.” Resolving reasonable doubt in the Veteran’s favor, his unspecified depressive disorder is attributable to his active service. Therefore, the Board finds that entitlement to service connection is warranted for other unspecified depressive disorder and is granted. (Continued on the next page)   A determination of an appropriate rating for a single acquired psychiatric disorder to include both PTSD and depressive manifestations is the responsibility of the agency of original jurisdiction in the first instance. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. NeSmith, Associate Counsel