Citation Nr: 19123732 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 15-00 869 DATE: March 29, 2019 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as posttraumatic stress disorder (PTSD) and anxiety disorder, is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s currently diagnosed bilateral hearing loss and tinnitus are related to service. 2. Resolving all reasonable doubt in favor of the Veteran, the evidence shows that the Veteran has diagnoses of PTSD and anxiety disorder; the Veteran’s claimed in-service stressors are related to a fear of hostile military activity and are consistent with the places, types, and circumstances of the Veteran’s service; and the medical evidence of record links the diagnoses of PTSD and anxiety disorder to the in-service stressors. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for establishing entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety disorder, have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied entitlement to service connection for a bilateral hearing loss, tinnitus, and an acquired psychiatric disorder. The Veteran timely perfected an appeal. See July 2012 Notice of Disagreement; October 2014 Statement of the Case; November 2014 VA Form 9. In August 2014, the Veteran testified at a hearing before a Decision Review Officer (DRO), and, in November 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the claims file. Service Connection The Veteran seeks entitlement to service connection for bilateral hearing loss, tinnitus, and an acquired psychiatric disorder. Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d). For the 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; 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. Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Bilateral Hearing Loss and Tinnitus Service treatment records do not reflect complaints of or treatment for hearing loss or tinnitus. The Veteran’s June 1969 separation examination reflects that no hearing test was performed. An October 2005 VA new patient evaluation shows that the Veteran reported impaired hearing since a mortar attack in service. The Veteran was afforded a VA examination in September 2011. The Veteran reported experiencing bilateral hearing loss since the first winter after he came back from Vietnam. He reported exposure to helicopters, artillery, mortars, and rockets, all without hearing protection. He also described an incident wherein a mortar round exploded close to his head causing him pain and bleeding in his right ear. Post-service, he reported a two-year history of factory work with hearing protection, and he denied recreational noise exposure. The examiner indicated that she could not provide an etiology opinion without regard to speculation because no audio examination was done upon the Veteran’s separation from service. Here, the Veteran has been diagnosed with bilateral hearing loss and tinnitus, and the severity of his hearing loss in each ear meets the criteria for a disability as defined by 38 C.F.R. § 3.385. See September 2011 VA Examination Report. Thus, the first Shedden requirement is satisfied. Additionally, the Veteran has competently and credibly reported that he was exposed to excessive noise during his service in Vietnam. Specifically, the Veteran reported that during his 26 months in Vietnam, he was exposed to helicopters, artillery, mortars, machine gun fire, and rocket attacks. See September 2011 VA Examination Report; August 2014 DRO Hearing Transcript; November 2018 Board Hearing Transcript. The Veteran’s personnel records confirm that he served three tours in Vietnam and that he participated in four campaigns. Moreover, the Board notes that in-service acoustic trauma has already been conceded by VA in its denial of service connection for bilateral hearing loss and tinnitus. See October 2014 Statement of the Case. Accordingly, the Veteran’s noise exposure is conceded, and the second element of service connection is met. See Shedden, 381 F.3d at 1166-67. Having established a current disability and conceded in-service noise exposure, the question for consideration is whether the Veteran’s bilateral hearing loss and tinnitus is related to such in-service exposure. Upon review of the foregoing evidence, the Board concludes that the evidence of record is at least in equipoise for a finding that the Veteran currently suffers from hearing loss and tinnitus that is related to his military service. The Veteran has competently and credibly described hearing loss and tinnitus since shortly after returning from Vietnam. See September 2011 VA Examination Report; August 2014 DRO Hearing Transcript; November 2018 Board Hearing Transcript. The Board notes that the Veteran was separated from service one day after returning from a 26-month tour in Vietnam. The Veteran is competent to report the onset of his hearing loss and tinnitus symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Moreover, the Board finds that the Veteran’s statements in this regard are credible, as they are consistent with medical evidence showing that the when the Veteran first sought VA treatment in 2005, he reported hearing difficulties since 1969. This is especially true here because the Veteran reported experiencing hearing loss since service almost five years before he filed the instant claim for service connection. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”); cf. Cromer v. Nicholson, 19 Vet. App. 215 (2005) (upholding Board’s denial of service connection and finding that a veteran’s recent post-service account of in-service events was not credible because the Veteran had previously given other histories and theories that did not mention the alleged in-service event, and first “came up with the story” years after service and in connection with the compensation claim). Moreover, in multiple statements since 2005, the Veteran has consistently described in-service hearing difficulties that have persisted since service. The Board recognizes that the September 2011 VA examiner was unable to give an etiology opinion without resort to speculation. However, the examiner explained that this was specifically due to the absence of an audiogram at separation establishing the presence of hearing problems at that time. As noted, the Board has also considered the testimony of the Veteran establishing the presence of continuous symptoms of hearing loss and tinnitus during and after service, and the Board finds such evidence to be both credible and probative. In combination with the VA examiner’s findings, the Board concludes that the lay testimony is sufficient to place the evidence in relative equipoise as to whether the Veteran’s current hearing loss and tinnitus are related to symptoms experienced during and immediately after military service. The Court recently reiterated that “[b]y requiring only an ‘approximate balance of positive and negative evidence’ to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107 (b), the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). Therefore, having resolved reasonable doubt in favor of the Veteran, the Board finds that a grant of service connection for hearing loss and tinnitus is warranted. Acquired Psychiatric Disorder The record before the Board contains conflicting evidence as to whether the Veteran meets the criteria for a diagnosis of PTSD. During an October 2005 VA new patient evaluation, a PTSD screening was positive. An October 2005 VA treatment record shows that the Veteran reported bad memories of Vietnam and nervousness. He reported that he did not like to sit in crowds and must watch everyone with “super vigilance.” A February 2006 psychiatry group counseling note reflects a diagnosis of rule-out PTSD. A January 2011 VA psychiatry consultation note shows that the Veteran reported trouble sleeping since returning from Vietnam, “dreams about Vietnam like it happened yesterday,” and night sweats. He also reported that he startles easily, that loud noises bother him, that he does not like being in crowds, and that he likes to be alone. He was diagnosed with chronic PTSD. In a May 2011 letter, the Veteran’s Vet Center therapist reported that the Veteran had been receiving psychotherapy services at the Vet Center since September 2010. The therapist indicated that the Veteran had been observed during 15 individual sessions and that the Veteran had “PTSD symptoms related to the life threatening combat experiences he endured and survived while serving 3 tours with the U.S. Army in Vietnam.” The therapist noted a range of symptoms related to combat trauma experiences, such as: reoccurring intrusive recollections of events in Vietnam with connection to mood changes; desire to isolate; noticeable triggers such as helicopters, the smell of diesel, and children; reoccurring distressing dreams two to three times per week; and attempting to avoid thoughts of past Vietnam experiences. The therapist opined that the Veteran “is suffering from periods of [d]epression and symptoms indicative of Post Traumatic Stress Disorder related to his combat experiences in Vietnam.” The Veteran was afforded a VA examination in September 2011. The examiner indicated that the Veteran’s combat stressors were adequate to support a diagnosis of PTSD and that they were related to the Veteran’s fear of hostile military or terrorist activity. However, the examiner opined that the Veteran did not meet the full DSM-IV criteria for PTSD because he did not fulfill the symptom criteria for persistent re-experiencing the traumatic event. The examiner diagnosed the Veteran with anxiety disorder and opined that it was not related to the Veteran’s service in Vietnam because “[d]ue to the elapsed time from stressor and onset of symptoms, a link cannot be established” and because the “Veteran has other factors contributing to his anxiety for the past couple of years such as unemployment, medical health issues[,] and separation from wife.” The Veteran was afforded a VA examination in October 2014. He reported that he came under rocket attack in Vietnam and that he volunteered to shoot machine guns aboard a helicopter. He also reported that at one point in Vietnam, “they was [sic] hunting us down…We had to go through alley ways.” The VA examiner indicated that the Veteran’s stressors did not meet Criterion A and were not related to the Veteran’s fear of hostile military activity. Regarding PTSD symptoms, the examiner noted re-experiencing symptoms of: chronic, moderate recurrent distressing dreams and intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. The examiner also noted symptoms related to persistent avoidance, negative alterations in cognitions or moods, and marked alterations in arousal and reactivity. The examiner indicated that the Veteran did not have a mental disorder diagnosis. The examiner also stated that the Veteran “was administered two tests and the results from both of the tests indicated that the [V]eteran was feigning symptoms.” The examiner indicated that he was therefore unable to determine if the Veteran met the criteria for PTSD. The examiner also noted that “[t]he fact that the [V]eteran was not diagnosed with PTSD is not tantamount to saying that he does not have PTSD.” Subsequent VA psychiatry records show continued treatment for and diagnoses of PTSD, to include a June 2016 record showing a diagnosis of “PTSD, chronic following military combat.” Upon review of the medical evidence of record, the Board finds that the evidence is at least in equipoise on the issue of whether the Veteran currently has a diagnosis of PTSD. The Veteran has been diagnosed with PTSD by a VA psychiatrist and his Vet Center social worker. A PTSD diagnosis by a mental-health professional must be presumed to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor absent compelling evidence to the contrary. Cohen v. Brown, 10 Vet. App. 128, 140 (1997); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (holding that, in the absence of evidence to the contrary, medical professionals are presumed to be competent to render the diagnoses they render). In light of Cohen, the Board finds that the Veteran has been diagnosed with PTSD and to determine otherwise the Board would have to rely on its own medical judgment to support its conclusions. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). The Board acknowledges that the September 2011 and October 2014 VA examiners found that the Veteran did not meet the diagnostic criteria for PTSD. However, when the negative VA opinions are weighed against the Veteran’s treatment records showing diagnoses of PTSD based upon the Veteran’s consistent and credible reports of his combat experiences and his psychiatric symptoms, the evidence is in equipoise on the issue. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran currently has a confirmed diagnosis of PTSD. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As for the in-service stressor, generally, the evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether a veteran “engaged in combat with the enemy.” See Gaines v. West, 11 Vet. App. 353, 358 (1998); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). Service department evidence that the Veteran engaged in combat or that a veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). In this case, there is no evidence to suggest that the Veteran “engaged in combat with the enemy,” as that term is defined for VA purposes. Although the record clearly shows that the Veteran served in Vietnam and was exposed to enemy activity, service records do not reflect any specific combat awards or citations. Generally, where a determination is made that a veteran did not “engage in combat with the enemy,” or the claimed stressor is not related to combat, a veteran’s lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the Veteran’s testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. If a stressor claimed by a veteran is related to the Veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances 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). For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39843 (July 13, 2010), as amended by 75 Fed. Reg. 41092 (July 15, 2010). In the present case, the Veteran asserts that his stressors relate to his service in Vietnam, where his unit received frequent enemy attacks. He states that he was in constant fear of an attack. He also asserts that he saw American servicemen killed and that he volunteered to serve as a helicopter gunner. Thus, the Veteran’s claimed stressors are clearly related to his fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 (July 13, 2010). Additionally, the Veteran’s VA psychiatrist diagnosed the Veteran with PTSD due to his wartime experiences, thereby confirming that his claimed stressors were adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to those claimed stressors. Moreover, although the September 2011 VA examiner opined that the Veteran did not meet the full criteria for a diagnosis of PTSD, the examiner opined that the aforementioned stressors were adequate to support a diagnosis of PTSD. Furthermore, the Veteran’s personnel records show that he served three tours in Vietnam for a total of 26 months, that he participated in four Vietnam campaigns, and that he earned the Republic of Vietnam Campaign Medal. Therefore, the Veteran’s claimed stressors of enemy attacks and seeing dead bodies are consistent with the places, types, and circumstances of the Veteran’s service in the Vietnam War zone, and there is no clear and convincing evidence to the contrary. In fact, in the December 2011 rating decision, the RO conceded the Veteran’s PTSD stressors. The Board agrees with the RO and finds that the Veteran’s lay statements regarding his in-service stressors are credible and sufficient to establish the occurrence of the claimed in-service stressors pursuant to 38 C.F.R. § 3.304(f)(3). Turning to the question of whether there is a nexus, or link, between the currently shown disability and the in-service stressor, the evidence shows that the Veteran’s PTSD and anxiety disorder have been linked to the aforementioned stressors. As noted above, the Veteran’s VA and Vet Center mental health treatment providers have diagnosed the Veteran with PTSD and anxiety disorder based upon his wartime experiences, and the Veteran’s mental health treatment has centered, almost exclusively, on his traumatic memories of his wartime service. Moreover, although the September 2011 VA examiner found that the Veteran’s symptoms did not meet the full diagnostic criteria for PTSD, the examiner did find that the Veteran’s stressors were adequate to support a diagnosis of PTSD and were related to the Veteran’s fear of hostile military or terrorist activity. The Board acknowledges the negative nexus opinion from the September 2011 VA examiner that the Veteran’s anxiety disorder was not related to service because the Veteran did not seek psychiatric treatment until many years after service. However, the Board finds the rationale provided to be problematic, as it relied exclusively on a lack of treatment records without regard of for the Veteran’s lay statements. Relying on the absence of evidence in medical records, without regard for lay statements, to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). (Continued on the next page)   In light of the foregoing, a preponderance of the evidence establishes that the Veteran’s PTSD and anxiety disorder are related to his in-service trauma. Therefore, the Board is satisfied that the criteria for entitlement to service connection for PTSD and anxiety disorder have been met. Reasonable doubt has been resolved in favor of the Veteran in this matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel