Citation Nr: 1807544 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-24 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for depressive disorder. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for hypertension, to include on a secondary basis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to December 1970 and is a Purple Heart recipient. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC which denied service connection for bilateral hearing loss, PTSD, hypertension and asthma. In June 2013, the Veteran filed his notice of disagreement as to all claims, and in June 2014 was issued a statement of the case and perfected his appeal to the Board. In February 2015, the issue of entitlement to service connection for asthma was withdrawn. In December 2017, the Veteran appeared at videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. As noted above, the Veteran filed a claim for service connection for PTSD with depression. However, the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has re-characterized and bifurcated the Veteran's claim of service connection for PTSD, for the reasons indicated in the discussion below. The issues of entitlement to service connection for PTSD and to hypertension, to include on a secondary basis, are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has bilateral hearing loss which is attributable to acoustic noise exposure in service. 2. The Veteran has depressive disorder, not otherwise specified (NOS), which is attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. Depressive disorder, NOS, was incurred in active service. 38 U.S.C. §§ 1101, 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304(d) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §1110; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, 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 or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). I. Hearing Loss A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. Service treatment records were silent for complaints or findings related to hearing loss. The Veteran denied any issues related to his hearing at induction and separation from service. His November 1967 medical examination report notes no issues concerning his hearing and his audiological examination report noted puretone thresholds at 500,1000, 2000, and 4000 Hz were 10, 5, 5 and 5 dB respectively for the right ear, and 20, 10, 5, and 10 dB respectively for the left ear. Puretone thresholds at 3000 Hz were not reported. A July 1970 audiological examination report noted puretone thresholds at 500,1000, 2000, 3000, and 4000 Hz were 0, 5, 5, 5 and 10 dB respectively for the right ear, and 15, 5, 0, 5, and 10 dB respectively for the left ear. An October 2012 hearing loss disability benefits questionnaire (DBQ) noted that the Veteran was provided with an audiological examination. The audiologist noted that the Veteran's puretone thresholds at 500,1000, 2000, 3000 and 4000 Hz were 25, 25, 25, 35 and 45 dB respectively for the right ear, and 25, 25, 20, 25, and 45 dB respectively for the left ear. His speech discrimination score using the Maryland CNC test was 94 percent for his right ear, and 80 percent for his left ear. The audiologist concluded that the Veteran's hearing loss is not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The audiologist noted that there was no shift of hearing loss or significant threshold shift during military service, and the Veteran's hearing was within normal limits on enlistment and separation examinations. The probative evidence reflects that the Veteran has a current bilateral hearing loss disability for VA purposes as the he has a puretone threshold of greater than 40 dB at 4000 Hz in both ears. The Veteran has asserted that his bilateral hearing loss is the result of exposure to acoustic trauma while in service. He stated, and his DD-214 indicates, that he served as a helicopter pilot and was exposed to extremely loud noise for an extended time which was harmful to his hearing. He testified that his hearing loss started after service, but he does not remember when it began, but stated it had been occurring for a long time. He stated while he did not notice his hearing loss, his coworkers and wife would tell him that he was yelling when he did not realize it, and he also stated that people thought he was ignoring them when he actually was not able to hear them. As noted above, the Veteran's separation documents reflect he was awarded a Purple Heart which indicates that he engaged in combat with the enemy. See VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated March 31, 2017). The Veteran stated during his hearing that he was awarded his Purple Heart for suffering an injury while under fire when transporting an injured soldier injured. The finding that the Veteran engaged in combat is significant because VA laws and regulations allow a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154 (b)). See also 38 C.F.R. § 3.304 (d). Based on the service records, the evidence submitted by the Veteran, and by applying 38 U.S.C. § 1154 (b), the Board concludes that the Veteran sustained acoustic trauma during combat operations. The remaining issue is whether the current hearing loss is related to the acoustic trauma. The fact that the claimed cause of the Veteran's hearing loss, i.e., acoustic trauma from helicopter noise, is established by his testimony does not prevent him from also invoking the section 1154(b) presumption in order to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. The Board finds that, given the application of 38 U.S.C. § 1154 (b) as explained in Reeves, the Veteran's lay testimony alone provides a sufficient basis to conclude that his current hearing loss disability is related to the acoustic trauma he suffered in service. The Board notes the October 2012 audiologist opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of noise exposure during service because there was no evidence of a puretone threshold shift during service, and the Veteran's separation audiogram revealed normal hearing bilaterally. This opinion is, however, flawed because normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss. Hensley, supra; Ledford v. Derwinski, 3 Vet. App. 87 (1992). The Veteran has also credibly asserted that he experienced hearing loss since service, candidly indicating that he was uncertain of the precise date of onset but indicating that the statements of those around him reflected onset from approximating the time of service. The evidence is, thus, at least evenly balanced as to whether the Veteran's current bilateral hearing loss disability is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. II. Psychiatric Disorder The Veteran asserts that he suffers from a psychiatric disorder stemming from an incident when he was on a mission while serving in Vietnam. He was told to bring in a wounded Vietnamese soldier who had a round in his mouth. The Veteran stated he as in fear of his life as he thought the round would go off. The Veteran's representative also argues that if the Veteran had been evaluated under DSM-5, the examiner would have taken into consideration depersonalization which was not present in DSM-IV which possibly would have substantiated a finding of PTSD with depression. The Veteran's service treatment records, including his reports of medical examination and medical history reports, are silent for any treatment for any psychiatric disability. An August 2012 DBQ noted that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV criteria. The examiner noted that the Veteran did have a diagnosis for depressive disorder NOS. The Veteran stated his stressor's in Vietnam included: having to airlift injured soldiers, and recalled seeing one's brains slide out; watching a radio operator cry while the head and torso of one of the operator's friends was placed on board his helicopter; and witnessing a man's leg bone sticking out after a land mine exploded. He also recalled an experience when he had bullets shot into his helicopter and he was injured by the fragmented ceramic section that supported his helicopter after it was shattered by a bullet. Here, the Veteran has a diagnosis for depressive disorder NOS as indicated by the August 2012 examination report. He has described several stressors which occurred while he served in active duty which he contends caused his depressive disorder NOS, and notably the Veteran is a combat Veteran and thus may use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154 (b)). See also 38 C.F.R. § 3.304 (d). As the Veteran is a combat Veteran, his exposure to a stressor has been established as it is consistent with the circumstances, conditions, or hardships of the Veteran's service. Additionally, the August 2012 DBQ contains a diagnosis of depressive disorder NOS which the examiner based on the Veteran's in-service stressors, to include fear of hostile military or terrorist activity, while declining to diagnose PTSD. The examiner failed to opine as to whether the Veteran's depressive disorder NOS was related to service, but, as noted, the fact that the claimed cause of the Veteran's depressive disorder, i.e., the in-service stressors, is established by his testimony does not prevent him from also invoking the section 1154(b) presumption in order to show that he incurred the psychiatric disability itself while in service. Reeves, 682 F.3d at 999. The Veteran's lay statements indicated that he suffered psychiatric symptoms since service and the Board finds his testimony to be competent and credible. While the Veteran is not competent to diagnose a psychiatric disorder, Clemons, 23 Vet. App. at 6 ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"), he is competent to describe symptoms. The evidence is thus at least evenly balanced as to whether the Veteran's depressive disorder NOS is related to his combat service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for depressive disorder NOS is warranted. 38 U.S.C. §5107(b); 38 C.F.R. §3.102. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for depressive disorder NOS is granted. REMAND There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Kays v. Snyder, 846 F.3d 1208, 1211 (Fed. Cir. 2017). VA has amended 38 C.F.R. § 4.125(a) to require the diagnosis to conform to DSM-5. This amendment applies to cases certified to the Board after August 4, 2014. See Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). This case was certified to the Board in February 2015 and the amendments therefore apply. The application of the amendment to this case is significant because the August 2012 VA examiner declined to diagnose PTSD, but was using DSM-IV. As noted by the Veteran's representative during the Board hearing, it is possible that examination pursuant to DSM-5 would produce a different result. Consequently remand of the claim for service connection for PTSD is warranted for a new VA examination conducted in accordance with DSM-5. VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2016). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran has asserted that he suffers from hypertension as a result of his service, or alternately, as a result of a service connected disease, to include diabetes mellitus II (DM II). The Veteran's representative noted during the Veteran's hearing that the Veteran's diagnosis was changed to benign hypertensive which he stated could indicate that the hypertension of a type to become evident more slowly. In August 2012, the Veteran was afforded a VA examination to assess his DM II. The examiner opined that the Veteran's hypertension was not at least as likely as not (at least a 50 percent probability) due to, or aggravated by, his DM II. The Veteran is also presumed to have been exposed to Agent Orange while serving in Vietnam. A veteran who, during active military, navel, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii) (2017). As previously noted, the Veteran served in Vietnam as evidenced by his DD Form 214, thus exposure to Agent Orange is presumed. The Board notes that while hypertension is not recognized as a disease for which service connection is presumed in veterans exposed to Agent Orange, the National Academy of Sciences has indicated that there is limited or suggestive evidence of an association between hypertension and herbicide agent exposure. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308 (Apr. 11, 2014); see also 38 C.F.R. § 3.309 (2017). The August 2012 VA examination report provided a negative opinion as to service connection secondary to DMII, but did not address direct service connection to include Agent Orange exposure. Moreover, VA's own statements in connection with its rulemaking authority support a possible association between hypertension and PTSD or other psychiatric disorders. VA has found that a presumption of service connection is warranted for hypertensive vascular disease for prisoners of war (POWs). This presumption is based on several medical studies indicating that veterans who have a long-term history of PTSD have a high risk of developing cardiovascular disease and myocardial infarction; thus, since POWs have a relatively high rate of PTSD incurrence, they would presumably be at greater risk of cardiovascular disease to include hypertension. See Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004). As such, an additional opinion should be obtained on remand that addresses the multiple theories of entitlement to service connection for hypertension. Accordingly, the claims remaining on appeal are REMANDED for the following action: 1. Request an opinion from an appropriate specialist physician determine the nature and etiology of his current hypertension. Any indicated tests should be accomplished. The physician must review the record prior to examination. The physician should provide an opinion as to whether it is at least as likely as not, (50 percent or greater probability), that: (a) hypertension is related to service, to include Agent Orange exposure. (b) hypertension was manifest in service or within one year following service (c) hypertension is either (i) caused or (ii) aggravated by either service connected DMII or a service connected psychiatric disorder. The examiner must provide reasons for all opinions, addressing the relevant medical and lay evidence. 2. Schedule a new VA examination as to whether the Veteran has PTSD in accordance with the current disability benefits questionnaire, to include consideration under DSM-5. 3. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issues remaining on appeal. If any benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs