Citation Nr: 18156762 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-27 550A DATE: December 11, 2018 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and dysthymic disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to March 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Also, based on the nature of the Veteran’s acquired psychiatric diagnoses, the Board finds that it is appropriate to recharacterize the claim as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and dysthymic disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was provided a VA examination for his claimed bilateral hearing loss in November 2014. The VA examiner found that the Veteran had hearing loss for VA purposes in the right ear, but that it was less likely than not related to his service as there was no significant threshold shift in service and no objective evidence of acoustic trauma. As such, the VA examiner claimed that right ear hearing loss is more likely due to civilian noise exposure, presbycusis, or some other etiology. The VA examiner provided a separate opinion for left ear hearing loss, noting that there was a pre-existing mild high frequency hearing loss in the left ear but that as there was no significant threshold shift in service and no objective evidence of acoustic trauma. As such, the VA examiner claimed that right ear hearing loss is more likely due to civilian noise exposure, presbycusis, or some other etiology. The Board finds the examiner’s opinions to be inadequate. First, the fact that hearing loss was not demonstrated during active duty is not fatal to the Veteran’s claim. Moreover, the examiner’s negative nexus opinion lacks any meaningful rationale, as he only indicates that the Veteran’s separation examination did not reveal hearing loss. Neither a normal separation examination alone nor the absence of a separation audiometric examination is an adequate basis for a negative nexus opinion in such a case. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). It should be noted that the absence of in-service evidence of a hearing disability is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley, 5 Vet. App. at 159. As such, the Board finds that another VA examination must be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Second, the Veteran has provided competent and credible evidence of in-service acoustic trauma. On the June 2014 Application for Disability Compensation and Benefits, the Veteran indicated he had hearing loss due to exposure to artillery fire while in Vietnam. He reported that he endured the loud sounds of artillery fire throughout his tour of duty. In his June 2016 VA Form 9, Substantive Appeal, the Veteran reported that during part of his time in Vietnam, his living quarters were a tent, where he was exposed to 12-18 hours a day of artillery fire that caused the ground and tent to shake. The Board finds that the Veteran’s reports of acoustic trauma are consistent with the known circumstances of his service and are supported by his military personnel records. As such, the Board finds that the Veteran experienced an in-service injury, exposure to hazardous noise; namely, being exposed to extended periods of artillery fire, which was so intense that the ground shook, at his living quarters. The Board finds the Veteran’s reports of exposure to hazardous noise due to his experiences in Vietnam to be competent and credible. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Finally, Board also notes that the Veteran’s VA treatment records reflect that the Veteran did not have significant civilian occupational noise exposure or recreational noise exposure, contrary to the implication in the November 2014 VA opinion. As such, on VA examination, the examiner shall provide an opinion that considers the reported level of civilian noise exposure, both occupational and recreational, and discuss the opinion of the November 2014 VA examiner in developing the nexus opinion and supporting rationale. Also, of note in regards to left ear hearing loss, on his March 1966 entrance examination the Veteran’s left ear revealed, in pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 5 15 25 35 These results do show some degree of hearing loss in the left ear at that time; however, these results do not show hearing loss by VA standards in the left ear. See McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding when a veteran’s hearing loss did not meet VA’s definition of a “disability” for hearing loss under 38 C.F.R. § 3.385, the veteran was entitled to the presumption of soundness under 38 U.S.C. § 1111); Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (noting that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss). Therefore, the Veteran is presumed sound as to hearing loss in the left ear. As such, the claim for service connection for left ear hearing loss is also considered one of direct service connection only and evaluation can proceed in conjunction with right ear hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran has also filed a claim for an acquired psychiatric disorder for which he was provided a VA examination in November 2014. The VA examiner found that the Veteran did not meet the diagnostic criteria for PTSD, but did have a diagnosis of dysthymia. In an October 2018 addendum opinion, the same VA examiner opined that the Veteran’s dysthymia is due to his childhood trauma and was not worsened by his confirmed stressor in service. VA treatment records reflect diagnoses of combat-related PTSD as well as major depressive disorder. Further, in his June 2016 VA Form 9, Substantive Appeal, the Veteran reported that while he did have depressive disorder prior to service, it was exacerbated by his experienced in Vietnam. The Veteran argued that he has had anger management issues since his discharge from service which have contributed to his relationship and marital issues. The Veteran also argued that the November 2014 VA examiner did not ask him questions about his current state or past experiences and that he could not have been able to make a determination on the Veteran’s mental state based on that appointment in light of the diagnoses in the VA record. The Board agrees, in light of the Veteran’s various diagnoses and that the October 2018 addendum opinion does not clearly address the Veteran’s allegations of exacerbation during service, the Veteran is entitled to another VA examination for his acquired psychiatric disorder. Dalton, 21 Vet. App. at 39; Nieves-Rodriguez, 22 Vet. App. at 304; Barr, 21 Vet. App. at 312. Also, as the Veteran is in receipt of VA treatment, upon remand updated treatment records must be obtained. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s relevant VA treatment records from April 2018 to the present. 2. After completion of 1 above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of bilateral hearing loss. The examiner must opine whether it is at least as likely as not that bilateral hearing loss was related to an in-service injury, event, or disease, including the conceded acoustic trauma. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After completion of 1 above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his acquired psychiatric disorder, to include PTSD, major depressive disorder, and dysthymia. The entire claims file should be made available to the examiner in conjunction with this request. All tests deemed necessary, including psychological testing, should be performed and all findings should be reported in detail. (a) The VA examiner must identify all current acquired psychiatric disorders. (b) For each identified acquired psychiatric disorder, did it clearly and unmistakably (i.e., is it undebatable) preexist the Veteran’s service? (c) If the examiner finds any acquired psychiatric disorder, to include PTSD, major depressive disorder, and dysthymic disorder, did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated (i.e., permanent increase in severity beyond the natural progression of the condition) by service. (d) If the examiner finds that any acquired psychiatric disorder, including PTSD, major depressive disorder, and dysthymic disorder, either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether any psychiatric disability is at least as likely as not related to an in-service injury, event, or disease. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel