Citation Nr: 18159978 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 15-01 065 DATE: December 20, 2018 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for an acquired psychiatric disorder, namely posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. Tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge. 2. At no time during the pendency of the claim does the Veteran have a current diagnosis of right ear hearing loss disability for VA purposes. 3. The Veteran’s left ear hearing loss did not begin during active service or within one year of service, nor is it otherwise related to an in-service injury, event, or disease. 4. Resolving all doubt in favor of the Veteran, an acquired psychiatric disorder, diagnosed as PTSD is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2017). 3. The criteria for establishing service connection for an acquired psychiatric disorder, namely PTSD, have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1965 to July 1968, including service in the Republic of Vietnam. The Veteran received the Purple Heart medal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St Petersburg, Florida. In April 2018, the Veteran’s attorney submitted additional evidence in support of the instant appeals. This submission was accompanied by a waiver of initial agency of original jurisdiction (AOJ) consideration. Therefore, the Board may properly consider such evidence. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include psychosis and organic disease 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, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding tinnitus is an organic disease of the nervous system where there is acoustic trauma); see also Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to “chronic” diseases such as psychoses listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For 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; when the auditory thresholds for at least three of the above frequencies 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. However, “when audiometric test results at a Veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. According to 38 C.F.R. § 3.384, as applicable in the instant case, the term ‘psychosis’ includes a brief psychotic disorder; delusional disorder; psychotic disorder due to general medical condition; other specified schizophrenia spectrum and other psychotic disorder; schizoaffective disorder; schizophrenia; schizophreniform disorder; and substance/medication-induced psychotic disorder. In addition to the general principles governing service connection, to establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. There must be: 1) medical evidence diagnosing PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-V); 2) a link, established by medical evidence, between current symptoms of PTSD 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 diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually varies depending on whether it can be determined that the Veteran “engaged in combat with the enemy.” See 38 U.S.C. § 1154(b); 38 C.F.R. 3.304(d). If it is determined through military citation or other supportive evidence that a Veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the Veteran’s lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. See 38 C.F.R. § 3.304(f). Direct service connection for PTSD requires a nexus between a current DSM diagnosis and a stressor which occurred during service. 38 C.F.R. §§ 3.304(f), 4.125(a); Cohen v. Brown, 10 Vet. App. 128 (1997). According to the DSM diagnostic criteria for PSTD, a stressor involves a response including intense fear, helplessness, or horror after experiencing, witnessing, or confronting an event or events that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others. Cohen v. Brown, 10 Vet. App.128, 128 (1997). The sufficiency of a stressor for diagnostic purposes is a medical determination, while the occurrence of a claimed stressor is an adjudicatory determination. Id.; Moreau v. Brown, 9 Vet. App. 389 (1996). 1. Entitlement to service connection for tinnitus. The Veteran contends that he currently has tinnitus that is related to his active duty military service, to include his reported noise exposure therein. Regarding the first element of service connection, a current disability, the Board notes that the Veteran is competent to state whether he has, or has had, tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). As current tinnitus has been established, the question on this issue becomes whether that disability is related to the Veteran’s active duty service. The most probative evidence indicates that it is not. Service treatment records do not show that the Veteran was treated for or complained of tinnitus in service. Moreover, the separation examination indicates normal hearing. The Veteran was afforded a VA examination on April 2014. The examiner opined that it was less likely as not (less than 50/50 probability) that the Veteran’s tinnitus was caused by or a result of in-service noise exposure. The examiner reasoned that only seldom does noise cause a permanent tinnitus without also causing hearing loss per a recent publication, that the Veteran’s hearing was within normal limits at service separation and that the service treatment records were silent for tinnitus. The Board has first considered whether tinnitus is warranted on a presumptive basis. Though the Veteran reported that he had noticed the onset of tinnitus while in Vietnam in an April 2014 VA examination report, the clinical evidence of record fails to show that tinnitus manifested within one year after service discharge. The Veteran did not report symptoms of tinnitus or other significant interval history in the June 1968 service discharge examination report. Consequently, presumptive service connection, to include on the basis of continuity of symptomatology, for tinnitus is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for tinnitus. While the evidence of record shows that the Veteran has current tinnitus, the probative evidence of record demonstrates that such is not related to his service. The April 2014 VA examiner opined that the Veteran’s current tinnitus is less likely than not related to service. The opinion was provided following examination of the Veteran and review of the claims file, and provided an adequate rationale for the conclusions reached. Thus, the Board finds that the examiner’s opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no probative opinion to the contrary. To the extent the Veteran believes that his current tinnitus is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, tinnitus can have many causes such as acoustic trauma, medications, infections, and diseases, and medical expertise is needed to determine the etiology of the disorder. Accordingly, the Veteran’s opinion as to the etiology of his tinnitus, which was first shown by competent and credible evidence many years after service, is not competent medical evidence. The Board finds that the only medical evidence of record, the findings and opinion of the April 2014 VA examiner, to be of greater probative value than the Veteran’s lay contentions. Upon review of the evidence, the Board finds the preponderance of the evidence is against the claim. In summary, the Board finds that tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service. Consequently, service connection for such disorder is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not applicable to this claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he currently has bilateral hearing loss that is related to his exposure to artillery fire and explosions during his military service. As an initial matter, an April 2014 hearing loss evaluation revealed left ear hearing loss but no right ear hearing loss for VA purposes. The testing revealed the following pure tone thresholds in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 10 10 35 35 23 (22.5) LEFT 10 10 45 50 29 (28.75) The testing revealed a right ear speech recognition score of 100 percent and a left ear testing revealed a speech recognition score of 96 percent. Right ear hearing loss The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. The results of the August 2014 examination do not show that the Veteran’s hearing loss has resulted in one threshold at 40 decibels or greater in the right ear, in three thresholds at 26 or greater in the right ear, or in speech discrimination scores lower than 94 percent in the right ear. There is no other competent evidence from VA or private sources showing that the Veteran has hearing loss that meets these criteria. Thus, the Veteran does not meet the schedular requirements of hearing loss for VA purposes. 38 C.F.R. § 3.385. The most probative evidence of record shows that the Veteran’s hearing does not currently meet the criteria to be considered a disability for VA purposes. If the Veteran’s hearing worsens, he may submit evidence of any worsening that meets the criteria of 38 C.F.R. § 3.385 in an application to reopen the claim. As the preponderance evidence is against a finding of a current hearing loss disability, the threshold requirement for substantiating a claim for service connection cannot be met. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the preponderance of the evidence is against a finding of any current disability of right ear hearing loss, the claim for service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Left ear hearing loss The Veteran does have a left ear hearing loss for VA disability purposes. The results of the August 2014 examination show that the Veteran’s hearing loss has resulted in one threshold at 40 decibels or greater in the left ear. Thus, the Veteran does meet the schedular requirements of hearing loss for VA purposes. 38 C.F.R. § 3.385. The most probative evidence of record shows that the Veteran’s left ear hearing does currently meet the criteria to be considered a disability for VA purposes. The Veteran’s service treatment records show no complaints of or treatment for hearing loss at any time. The Veteran’s June 1968 medical examination documented audiogram pure tone thresholds results of 5, 5, 0, and 10 decibels in the right ear, and 5, 0, 0, and 5 decibels in the left ear at 500, 1000, 2000, and 4000 Hertz. Thus, there is no competent evidence showing a hearing loss disability consistent with 38 C.F.R. 3.385 during service. Nor is there competent evidence showing a hearing loss disability within one year after the Veteran’s separation from service. In fact, a hearing loss disability was not diagnosed until many years after service at the September 2014 VA examination. As the competent evidence fails to show a hearing loss disability in service, or for many years thereafter, the question in this case becomes whether the current left ear hearing loss disability is etiologically related to service. On this question, the preponderance of the competent and probative evidence is against the claim. Following a review of the record and examination of the Veteran, a VA examiner in April 2014 concluded that the Veteran had bilateral hearing loss that was not caused by or a result of his military service. At that time the Veteran reported military noise exposure including explosions and rifles without hearing protection. He also noted civilian noise exposure to weapons training in law enforcement for four years with hearing protection. Ultimately, the examiner opined that the Veteran’s permanent threshold shifts would likely not amount to a hearing loss for VA purposes. In addition, the examiner opined that the Veteran’s right and left hearing were within normal limits at separation thus there was no objective evidence of onset hearing loss or of noise injury. Furthermore, the examiner noted that the Veteran did not have any in-service treatment for hearing loss. Thus, the examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss was related to his military service. There is no medical opinion of record to the contrary. The Board finds the VA examiner’s opinion that the Veteran’s left ear hearing loss is not related to his service, to include his reported noise exposure therein, to be highly probative. The VA examiner’s opinion was based on examination of the Veteran and thorough review of the claims file. Moreover, the examiner provided an adequate rationale for the opinion provided. Accordingly, the April 2014 opinion is entitled to great probative weight. See Nieves-Rodriguez, supra. While the Veteran is competent to attest to noise exposure in service and to describe subjective symptoms of hearing loss, the diagnosis of hearing loss and the etiology of such require medical testing and expertise to determine. Thus, as a lay person the Veteran’s opinion on the onset and etiology of his hearing loss disability is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds the audiograms in service and the medical opinions rendered by the VA examiners to be significantly more probative than the Veteran’s lay assertions. In sum, there is no competent evidence showing a left ear hearing loss disability during service or within the year following discharge from service, and there is no medical opinion of record linking the Veteran’s current left ear hearing loss to his active duty service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for left ear hearing loss. In reaching the conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Entitlement to service connection for an acquired psychiatric disorder, namely PTSD. The Veteran contends that his PTSD is related to his in-combat service experiences which included witnessing the death of friends, facing life threatening injuries, and unloading caskets of about 300 soldiers. The Veteran’s service records indicate that he served as a Rifleman in Vietnam and that he is the recipient of a Purple Heart Medal. Given the foregoing, the Veteran’s stressors related to his combat experiences are acknowledged. The Veteran’s post-service clinical records reflect a diagnosis of PTSD. A July 2013 private treatment note indicates that the Veteran had possible PTSD related to his past military service. An August 2017 private opinion reflected a diagnosis of PTSD as did a December 2017 private opinion. Although the April 2014 VA examiner found that the Veteran did not meet the diagnostic criteria for PTSD, the private opinions noted above reflect a subsequent diagnosis of PTSD. As the Veteran has been diagnosed with PTSD during the pendency of the claim, the requirement for a current disability has been satisfied. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). After considering the totality of the evidence of record, the Board finds that it is faced with conflicting evidence as to whether the Veteran has a current diagnosis of PTSD is related to his in-service stressors involving combat. In November 2014 addendum opinion, a VA examiner opined that there were several stressors in the Veteran’s life that could be linked to his condition to include his job as a police officer, a surfing injury that left him paralyzed, and his indictment by a grand jury. In contrast, an August 2017 opinion from Dr. J. R., a private social worker, states that the Veteran is suffering from PTSD that is associated with his combat experiences and that he had verbalized and displayed with emotional intensity life threatening events in combat with the loss and grief over losing close comrades. A December 2017 opinion from Dr. M. P., a VA psychiatrist, found that the Veteran’s PTSD was attributable to his time in the Vietnam war rather than his time as a police officer. A February 2018 VA examiner opined that the Veteran’s PTSD was the result of his in-service stressors of being wounded in combat, the deaths of his friends and his unloading of 300 caskets. An April 2018 opinion from Dr. E. L., a private psychologist, indicates that it was at least as likely as not that the Veteran’s PTSD was due to the verified combat-related stressors during Vietnam. The Board finds that, after weighing the positive and negative evidence, such evidence is at least in a state of equipoise as to whether the Veteran has a diagnosis of PTSD related to his in-service stressors involving combat. In such situations, a decision is favorable to the appellant is mandated by 38 U.S.C. § 5107. Accordingly, further evidentiary development is not necessary. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Therefore, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that he has been diagnosed with PTSD due to stressors incurred during service. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that he has a diagnosis of PTSD related to his in-service stressors involving combat. Consequently, service connection for such disorder is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Iglesias, Law Clerk