Citation Nr: 18157018 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 15-35 920 DATE: December 11, 2018 ORDER Entitlement to service connection for bilateral hearing loss (BHL) is granted. Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of BHL which has been continually present since his military service. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for BHL due to noise exposure have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.07, 3.309, 3.385, 4.85. 2. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Navy from November 1961 to November 1966. He is a Vietnam Era Veteran with service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R § 3.303 (d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as sensorineural hearing loss or psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 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). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 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, 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). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has had hearing problems for years and years and he believes his hearing loss is due to the loud noises he was exposed to while in service. See VA Form 9 dated October 2015. 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 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, 5 Vet. App. at 159. As an initial matter, the Board finds the Veteran’s contentions regarding his in-service noise exposure to be competent and credible. Specifically, in his Notice of Disagreement (NOD) dated January 2014, the Veteran asserted that he was exposed to loud noises while stationed at Camp Pendleton. The Veteran said that he was exposed to loud, large guns during field training exercises. Additionally, when stationed in Vietnam, the Veteran stated that he was around a lot of helicopters. The Veteran made the same contentions in a May 2013 Statement in Support of Claim. The Veteran’s military personnel records confirm that he was stationed at Camp Pendleton and in the Republic of Vietnam. His personnel records are consistent with the Veteran’s claim of noise exposure. Therefore, the Board acknowledges that the Veteran was exposed to loud noise in service. The Board finds that the evidence of record shows that the Veteran was exposed to acoustic trauma in-service and his symptoms of hearing loss continued after separating from service. The Veteran’s service treatment records are silent as to complaints of hearing loss. The Veteran’s November 1961 enlistment exam and November 1966 separation exam do not include any results of audiometric testing. The exams show that the Veteran scored a 15/15 on the whispered voice test; however, the Board notes that the whispered voice tests are inaccurate and unreliable. See Veterans Benefits Administration Training Letter 211D (10-02), dated March 18, 2010; Adjudication Procedure Manual M21-1 (M21-1), Part III, Subpart iv, Chapter 4, Section B, Subsection 4, Paragraph g. In the January 2014 NOD, the Veteran asserted that he did not have hearing problems before entering the military and after leaving the service he was not subjected to any loud noises comparable to those encountered while in service. Further, the Veteran contends that he has had hearing problems for many years, but did not seek treatment after leaving the military because he did not have health insurance and did not have the means to purchase hearing aids. Additionally, in a January 2014 statement, the Veteran’s spouse reported that the Veteran’s hearing problems have existed for a long time. The Board finds that 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 v. Brown, 6 Vet. App. 465, 470 (1994). As to current findings of hearing loss, the Board finds that the Veteran has hearing loss for VA purposes. 38 C.F.R. § 3.385. The Veteran was afforded a VA audiological examination in December 2013. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 40 45 LEFT 0 5 15 45 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 88 in the left ear. While the audiometric testing conducted in December 2013 shows a diagnosis of sensorineural hearing loss in both the right and left ears, the examiner opined that the Veteran’s hearing loss was not at least as likely as not related to service. The rationale provided for the opinion was that the Veteran was only given the whispered voice test during entrance and exit exams and it is unknown as to whether the Veteran had hearing loss at either time. The examiner added that the Veteran’s hearing loss is comparable to that of a man his age with hearing loss due to presbycusis. However, the Board gives minimal probative value to the VA examiner’s opinion as to hearing loss. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician’s opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Court also has held that the absence of contemporaneous records is insufficient rationale for a medical nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The VA examiner rested her opinion on the lack of audiometric testing during service. Additionally, the VA examiner failed to consider the Veteran’s contentions regarding noise exposure in service. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Evidence provided by the Veteran shows that the Veteran has had continuous hearing loss since separating from service. Although hearing loss is not documented in the Veteran’s service treatment records, delayed onset of hearing loss for VA purposes is not a bar to granting service connection. Hensley, 5 Vet. App. at 159. Accordingly, the Board finds the VA examiner’s opinion inadequate due to her reliance on the lack of hearing loss documented in service and her failure to consider the Veteran’s lay contentions. In sum, the Veteran credibly contends that he incurred BHL during active service due to noise exposure during training exercises at Camp Pendleton and during service in the Republic of Vietnam. The Board has conceded that the Veteran was likely exposed to acoustic trauma in-service. The record evidence also shows that the Veteran has a current condition of BHL sufficient for VA purposes. Additionally, the Board has found that the only medical opinion of record dated in December 2013 addressing the contended etiological relationship between bilateral hearing loss and active service to be not probative. Therefore, the Board presumes that the Veteran’s hearing loss was incurred in-service based on the continuity of reported symptoms of hearing loss. The Board concludes that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385, 4.85. 2. Entitlement to service connection for PTSD The Veteran contends that he has mentally suffered due to his service in Vietnam and during his ambulance runs at Camp Pendleton. See NOD dated January 2014. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of PTSD or any other acquired psychiatric disorders and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107 (b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). The Veteran was afforded a PTSD examination on January 2014. The VA examiner determined that, while the Veteran experienced traumatic events and has recurrent, involuntary, and intrusive distressing memories of the traumatic events, he did not have a diagnosis of PTSD or any other mental health disorders. It should be noted that during the exam the Veteran reported that he had never had psychiatric treatment and does not think he needs treatment. Additionally, VA treatment records show a single notation for a PTSD/Depression screen completed on January 2015; however, the screen was negative and it was determined that there was no mental health condition requiring further intervention. Further, private medical records contain no evidence of complaints, treatment, or diagnoses for PTSD or any other mental health disorders. While the Veteran contends that he has symptoms related to PTSD such as nightmares, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical knowledge and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Gilbert, 1 Vet. App. at 54; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for hypertension The Veteran contends that he has had hypertension for many years and he believes that exposure to Agent Orange while in Vietnam and/or PTSD caused his hypertension. See NOD dated January 2014 and VA Form 9 dated September 2015. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the below noted reasons, the Board finds that a VA examination is necessary. Medical records show that the Veteran was first diagnosed with hypertension in September 1969. Records show that the Veteran continues to receive ongoing treatment and medication to manage his hypertension. The Veteran’s military personnel records show that the Veteran has service in the Republic of Vietnam where it is more likely than not that he was exposed to Agent Orange. The Veteran also reported in his January 2014 NOD that stress related to his experience in Vietnam may also have caused his hypertension. The Veteran has not been afforded a VA examination to determine the nature and etiology of his hypertension. Therefore, on remand, an opinion should be obtained to address the Veteran’s contentions that his hypertension may be due to Agent Orange or stress due to his Vietnam service. The matter is REMANDED for the following actions: 1. Obtain updated relevant VA treatment records and associate them with the claims file. 2. After the foregoing development has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension. After reviewing the claims file, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including Agent Orange exposure or stress related to service in the Republic of Vietnam. A rationale also should be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to mere speculation, then the examiner should explain why. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel