Citation Nr: 1808359 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 11-27 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Jan D. Dils, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1965 to June 1967, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in November 2010 and May 2015 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2017. The Board acknowledges that the hearing loss claim was certified on appeal as whether new and material evidence had been received to reopen previously denied claim. However, the Board finds that new and material evidence has been received to reopen this claim pursuant to 38 C.F.R. § 3.156(a). Therefore, this decision will address the merits of the underlying service connection claim. FINDINGS OF FACT 1. PTSD had its onset in service. 2. Bilateral hearing loss had its onset in service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for a grant of service connection for a bilateral hearing loss disability are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis - Psychiatric Disorder In addition to the general rules of service connection noted above, 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. 38 C.F.R. § 3.304(f). The provisions of 38 C.F.R. § 4.125 (a) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual of Mental Disorders (DSM). If the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). The Veteran has essentially contended, to include at his October 2017 hearing, that he developed an acquired psychiatric disorder as a result of stressors that occurred during his active service in the Republic of Vietnam. The Board notes that his service records confirm he had active duty in Vietnam. Further, his purported stressors include accounts of mortar attacks which appear consistent with the circumstances and conditions of such service. Moreover, his stressors include being at Long Binh when the ammo dump blew up; and the record reflects VA received confirmation from DPRIS that the ammunition supply depot at Long Binh was attacked by a hostile force which employed small arms, automatic weapons, grenades and/or mortars during a period when the Veteran was stationed in Vietnam. Presumably, it is this stressor which was referenced in the March 2017 Supplemental Statement of the Case which noted "We conceded a stressor based on your in-country Vietnam service." Despite the foregoing, the Board acknowledges that an October 2010 VA examination concluded, in essence, that the Veteran did not satisfy the criteria for a diagnosis of PTSD; and included an opinion against his current acquired psychiatric disorder being etiologically related to service. However, the Veteran challenges the adequacy of this examination, as did a private June 2015 medical opinion. Moreover, the June 2015 private medical opinion, as well as various VA treatment records, including from the Vet Center, do include a diagnosis of PTSD related at least in part to the Veteran's purported in-service stressors. Consequently, the Board finds the competent medical evidence is at least in equipoise as to whether the Veteran has PTSD, and, if so, whether it is due to his active service. In view of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds the competent and credible evidence of record reflects it is at least as likely as not he currently has PTSD as a result of his active service. Therefore, service connection is warranted. The Board acknowledges that the medical records show diagnoses of other psychiatric disorders such as depressive disorder and anxiety disorder, and the law does not preclude establishing service connection for a separately diagnosed acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Nevertheless, at his October 2017 hearing the Veteran indicated that a grant of service connection for any psychiatric disorder, however, diagnosed, would satisfy his appeal. See Transcript p. 7. Thus, this decision constitutes a full grant of the benefits sought on appeal. Analysis - Hearing Loss For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. In this case, a September 2010 VA arranged audio examination, as well as a more recent June 2017 VA audio examination, reflect the Veteran has a bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385. The Veteran has essentially contended, to include at his October 2017 hearing, that he developed hearing loss as a result of in-service noise exposure and provided details thereof. Further, he testified that his hearing problems developed while on active duty. Although competent medical evidence is required to confirm whether one has a hearing loss disability pursuant to 38 C.F.R. § 3.385, or evidence of hearing loss pursuant to Hensley, supra, the Veteran is competent to describe hearing problems. Moreover, the Board finds that his testimony on this matter is credible. The Board also notes these contentions are similar to those which were the basis for establishing service connection for tinnitus by the June 2017 DRO decision. The Board acknowledges that the September 2010 VA arranged audio examination include an opinion against the Veteran's hearing loss being etiologically related to service. However, this appears to be based upon the fact the in-service audio evaluations were within normal limits. Granted, audio evaluations conducted as part of the Veteran's June 1965 pre-induction examination and June 1967 separation examination do not show hearing loss pursuant to 38 C.F.R. § 3.385 or Hensley. Nevertheless, these evaluations do indicate a threshold shift indicative of worsening of his hearing during this period. Specifically, the June 1965 audio evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 -10 -10 -10 5 -5 LEFT -5 -10 0 -10 -10 0 The subsequent June 1967 audio evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 0 0 0 0 -- LEFT 0 0 0 0 0 -- With few exceptions, these results generally reflect a worsening at the tested frequencies. The Board also notes that the more recent June 2017 VA examination commented that an opinion as to the etiology of the hearing loss could not be provided without resort to speculation. The Board further notes that it does not appear either examination adequately took into account the Veteran's competent and credible account of recurrent hearing problems since service. As already noted, similar contentions provided the basis for the grant of service connection for tinnitus. Moreover, tinnitus is often associated with, or a component of, sensorineural hearing loss. The pathology underlying the Veteran's service-connected tinnitus cannot be clearly disassociated from his bilateral sensorineural hearing loss. In addition, the Board reiterates that the law mandates resolving all reasonable doubt in favor of the Veteran, to include issues of service origin. In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." For these reasons, the Board finds the competent and credible evidence of record reflects it is at least as likely as not the Veteran currently has a bilateral hearing loss disability as a result of his active service. Accordingly, service connection is warranted. ORDER Service connection for PTSD is granted. Service connection for a bilateral hearing loss disability is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs