Citation Nr: 20002124 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 18-10 330 DATE: January 9, 2020 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. Entitlement to service connection for right upper extremity neuropathy is remanded. Entitlement to service connection for right lower extremity neuropathy is remanded. Entitlement to service connection for left lower extremity neuropathy is remanded. FINDINGS OF FACT 1. It is as likely as not that bilateral hearing loss had its onset in service. 2. Tinnitus is as likely as not related to service or service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from March 1963 to March 1965. The appeal originates from a September 2013 decision of a Department of Veterans Affairs (VA) Regional Office. Entitlement to service connection for bilateral hearing loss and tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, such as sensorineural hearing loss and tinnitus, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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. The July 2013 VA examination report shows a diagnosis of bilateral sensorineural hearing loss meeting the threshold requirements for hearing loss under 38 C.F.R. § 3.385. Element (1) of Shedden is met. Service treatment records do not reflect treatment or diagnosis of hearing loss for VA purposes in service. However, the Veteran attributes his current hearing loss to in-service exposure to noise from gunfire and helicopters. See October 2019 Hearing Transcript. Though his DD-214 documents a military occupational specialty of draftsman, he testified that he was assigned different duties which exposed him to such noise. Granting him the benefit of the doubt, the Veteran’s reports of in service noise exposure are credible and sufficient to satisfy element (2) of Shedden. Regarding Shedden element (3), while the record does not reflect treatment or diagnosis of hearing loss for VA purposes in service, the lay evidence supports the Veteran’s claim of experiencing hearing loss since service. He states that he noticed a shift in hearing acuity shortly after separation that has progressively worsened over time. He reports hearing problems continuously since service with deterioration over several decades. The Veteran is competent to report a change in his hearing acuity and there is nothing in the record that causes the Board to question the veracity of his statements. Taken together with the circumstances of the Veteran’s service and the aforementioned lay statements, and resolving all doubt in his favor, the totality of the evidence supports the finding that the onset of his current hearing loss disability occurred during service, and that the symptoms of his hearing loss have progressed to this time. He is entitled to service connection for bilateral hearing loss. With respect to tinnitus, the Veteran reports ringing in the ears continuously since service. At the Board hearing, he essentially stated that he did not realize tinnitus was a disability and accommodated its symptoms. The Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural hearing loss. See The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems; The MERCK Manual, Section 7, Ch. 85, Inner Ear. In view of the totality of the evidence, including the recognition of in-service noise exposure, current finding of tinnitus, the provision from the MERCK manual, and credible lay testimony, the Board finds that service connection for tinnitus is warranted. Consideration is given to the July 2013 opinion that hearing loss and tinnitus are not related to service. The opinion fails to address the lay history presented by the Veteran of longstanding hearing problems and ringing in the ears. There were also shifts in the Veteran’s hearing in service, when comparing tests conducted in March 1963 and February 1965, that were not sufficiently addressed. Such limits the overall probative value of the opinion. The opinion is therefore outweighed by the other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. The Veteran contends that he has PTSD due to numerous in-service stressors as discussed below. VA treatment records do not reflect a diagnosis of any mental disorder. He underwent a VA examination in July 2013 at which time he reported stressors of being shot at by a sniper and engaging in a gunfight. The examiner found that he did not meet the DSM-4 criteria for a diagnosis of any mental disorder. In October 2016, the Veteran submitted evidence of additional stressors. He reported a physical encounter with an enemy prisoner of war, loading dead bodies onto aircraft, witnessing another servicemember come under attack, coming under fire in a helicopter and killing an enemy combatant, and experiencing mortar attacks. However, in significant part, VA conceded fear of hostile military or terrorist activity following receipt of this evidence. See January 2018 SOC. Given the evidence of additional stressors not considered at the July 2013 examination, the Veteran’s apparent endorsement of continuing psychiatric symptoms, and the change to DSM-5 criteria in the course of the appeal, he should be afforded another examination to ascertain whether he has a mental disorder related to service. 2. Entitlement to service connection for right upper extremity, right lower extremity, and left lower extremity neuropathies is remanded. The Veteran contends that he has peripheral neuropathy of the right upper, right lower, and left lower extremities due to in-service exposure to herbicide agents. He served in Vietnam and therefore has presumptive herbicide exposure. VA treatment records reflect complaints of neuropathy-like symptoms and a prescription of nerve pain medication. Accordingly, the Veteran should be afforded a VA examination to determine the nature and etiology of any peripheral neuropathy. The matters are REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination. The examiner should address the following: a. Identify/diagnose any mental disorder that exists or has existed during the appeal. A specific finding should be made as to whether the criteria for a diagnosis of PTSD under the DSM-V have been met. If a diagnosis of PTSD is not made, the examiner should specify the criteria that were not met. b. If a diagnosis of PTSD is made, the stressor(s) should be clearly identified. The examiner is advised that VA has conceded fear of hostile military or terrorist activity. c. For any diagnosed acquired psychiatric disorder other than PTSD, is it at least as likely as not that the disorder had its onset in service or is otherwise etiologically related to the Veteran’s active service or any incident occurring within service. 2. Schedule the Veteran for a peripheral neuropathy examination. The examiner should address the following: a. Identify/diagnose any neurological disorder of the right upper, right lower, and left lower extremities. If a diagnosis is not made, reconcile the finding with the evidence of record, including the Veteran’s complaints of neuropathy-like symptoms and prescription of nerve pain medication. b. Is it at least as likely as not that peripheral neuropathy had its onset in service or within a year of service discharge or is otherwise etiologically related to active service, including presumed exposure to herbicide agents? MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals M. Alhinnawi, Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.