Citation Nr: 20003097 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 14-16 079 DATE: January 14, 2020 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety disorder, is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. In September 2019, the appellant failed to report, without good cause, for a necessary VA examination scheduled in connection with his claim of service connection for an acquired psychiatric disability. 2. The available record shows that the appellant does not have an acquired psychiatric disability which was incurred in, or is otherwise causally related to, his active service. 3. The most probative evidence establishes that the appellant’s bilateral hearing loss was not incurred in service, sensorineural hearing loss was not manifested to a compensable degree within one year of separation, and the current bilateral hearing loss is not otherwise causally related to an injury or disease during his active service, to include military noise exposure. 4. The appellant has experienced symptoms of tinnitus since his separation from active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110; 5107; 38 C.F.R. §§ 3.303, 3.304, 3.655. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110; 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110; 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Army from June 1960 to September 1966. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for anxiety disorder, PTSD, tinnitus, and bilateral hearing loss. The Board remanded this matter in March 2018. A Supplemental Statement of the Case (SSOC) was issued in November 2019. As noted in the March 2018 remand, the appellant’s October 2017 request for a Board hearing by videoconference was denied because five Board hearings had previously been scheduled in the past year which the appellant had cancelled or postponed. The appellant and his representative were informed of such in a January 2018 letter and afforded 30 additional days to provide additional evidence or argument. However, nothing has been received from the appellant or his representative to date. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including a psychosis and an organic disease of the nervous system, such as sensorineural hearing loss and tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). 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). Acquired psychiatric disability The Board finds that the preponderance of the evidence is against the claim of service connection for an acquired psychiatric disability. The Board remanded the matter in March 2018 in order to afford the appellant a psychiatric examination but he failed to appear without explanation. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Where entitlement to a VA benefit cannot be established or confirmed without a current VA examination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. 38 C.F.R. § 3.655(a). When a claimant fails to participate in a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought and (2) whether the claimant lacked good cause to miss the scheduled examination. Turk v. Peake, 21 Vet. App. 565, 568 (2008). In this case, the record indicates that the appellant was scheduled for a contracted examination in September 2019. In the March 2018 remand, the Board explained that the examination was necessary in connection with his claim. The appellant, however, failed to appear for such examination without explanation. Such was reiterated in September 2018 correspondence from the RO. In the November 2019 SSOC, a copy of which was provided to the appellant’s representative, the RO explained that the record contained no information indicating that the appellant had had good cause for failing to report for the examination. Since that time, neither the appellant nor his representative has offered additional evidence or argument in support of the claim, including an explanation for his failure to keep the examination appointment or request a rescheduling. Under these circumstances, the Board finds that the claim must be adjudicated based upon the evidence of record. 38 C.F.R. § 3.655(b); Turk, 21 Vet. App. 565 (2008). After considering the available evidence, the Board finds that the preponderance of the evidence is against a finding that the appellant has a current acquired psychiatric disability, to include PTSD or anxiety disorder, which was incurred in or is otherwise causally related to his active service. The service treatment records reflect that in November 1960, the appellant was examined to determine suitability for a security clearance. He recalled an incident when he was aged 16 and felt quite panicky and a little dizzy on a crowded bus when he was unable to move or get off. Service treatment records are otherwise negative for pertinent complaints or observations. The appellant’s July 1963 medical examination was essentially normal, including psychiatric evaluation. He denied frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and loss of memory or amnesia on his accompanying Report of Medical History. The appellant’s September 1966 separation examination was likewise essentially normal, including psychiatric evaluation. The appellant’s military personnel records show that he received no awards or decorations indicative of combat service. He was stationed at Fort Clayton, Panama, from August 1961 to May 1964, where his military occupational specialty (MOS) was Gunner and Cook. A February 2006 clinical note states that the appellant reported that he witnessed killings and killed some people himself. He reported problems sleeping and flashbacks. In a statement received in March 2006, the appellant reported seeing dead people while on active duty, including women whom he could do nothing for, and that he was unable to sleep as a result of such memories. A May 2010 VA Medical Center problem list includes anxiety. A July 2010 clinical note states that the appellant had been taking Alprazolam for eight years. The clinician observed that anxiety was on the appellant’s problem list. The appellant reported that he had been prescribed Alprazolam for “shell shock” as he was a gunner in the Panama conflict and was exposed to machine gun vibrations which cause his hands to shake. He reported experiencing tremors and that he has responded well to Alprazolam for such. In a statement received in July 2011, he reported that he saw men die from cannon accidents and misfires. After reviewing the record, the Board concludes that the preponderance of the evidence is against the claim. First, service connection is not warranted for PTSD because there is no diagnosis of PTSD, under DSM-IV or DSM-5, criteria based upon an in-service stressor. 38 C.F.R. § 3.304(f). Likewise, service connection is not warranted for an acquired psychiatric disability other than PTSD because there is no evidence of a causal relationship between any currently diagnosed acquired psychiatric disability and service. The Board has considered the appellant’s lay history of symptomatology related to his claimed disorder throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. Again, the appellant failed to appear without good cause for a scheduled examination which could have produced the necessary evidence in order to warrant a grant of the benefit sought. The evidence currently of record does not support a grant of service connection for an acquired psychiatric disability, to include PTSD or anxiety disorder. Accordingly, the Board finds that service connection for an acquired psychiatric disability must be denied. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Bilateral hearing loss and tinnitus During his June 1960 enlistment examination, whisper testing was performed and revealed hearing acuity of 15/15, bilaterally. A July 1963 audiogram revealed pure tone thresholds within normal limits. In his accompanying Report of Medical History, the appellant denied ear, nose, or throat trouble. During his September 1966 separation examination, audiogram again showed pure tone thresholds within normal limits with no significant threshold shifts since the July 1963 audiogram. The remaining service treatment records are otherwise negative for pertinent complaints or observations pertaining to hearing loss or tinnitus. The post-service record on appeal includes a February 2006 VA clinical note which indicates that the appellant complained of tinnitus. An April 2010 VA audiology note states that the appellant complained of, inter alia, tinnitus and decreased hearing acuity. Pure tone threshold testing revealed essentially normal hearing bilaterally through 2000 Hertz, with a precipitous high-frequency sensorineural loss beginning at 3000 Hertz to 8000 Hz bilaterally. In a statement received in July 2011, the appellant reported that he had been an artilleryman for six years. Possible exposure to excessive military noise was conceded based upon the appellant’s military occupational specialty (MOS) as AD Artillery AW Crewman. The appellant was afforded a VA examination in March 2013. The claims file was reviewed. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 55 65 70 LEFT 40 40 60 70 70 The 1000-4000 Hertz average was 58 decibels in the right ear and 60 in the left. Speech recognition using the Maryland CNC word list was 84 percent in the right ear and 84 percent in the left. The appellant was diagnosed with bilateral sensorineural hearing loss and tinnitus. The VA examiner opined that it was less likely than not that the appellant’s bilateral hearing loss was incurred in or was otherwise causally related to his active service because pure tone hearing thresholds upon separation were low and because the 2005 Institute of Medicine (IOM) Study “Noise and Military Service: Implications for Hearing Loss and Tinnitus” states that there is no scientific basis for delayed-onset hearing loss. With respect to tinnitus, the appellant reported a constant “hissing” in his ears since active service. The VA examiner opined that such was less likely than not incurred in or otherwise causally related to his active service because, although the appellant was around sufficient noise to cause acoustic trauma, the evidence does not support acoustic trauma with which to draw a nexus to the appellant’s current tinnitus complaints. In August 2017, the appellant’s representative submitted an article entitled “Adding Insult to Injury: Cochlear Nerve Degeneration after ‘Temporary’ Noise-Induced Hearing Loss,” The Journal of Neuroscience, November 11, 2009, discussing delayed onset of hearing loss. The March 2013 VA examination report does not specifically indicate that the examiner considered this study. As discussed in the March 2018 Board remand, the March 2013 VA medical opinion is inadequate and is thus entitled to minimal probative weight. To that end, a new VA medical opinion was obtained in September 2018 with respect to hearing loss and tinnitus. Following review of the claims file, the VA examiner opined that it was less likely than not that the appellant’s hearing loss and tinnitus were the result of military noise exposure. The VA audiologist indicated that, notably, the appellant’s September 1966 separation examination revealed exceptional hearing thresholds, i.e. the top end of normal. The VA audiologist explained that the November 2009 article submitted by the appellant’s representative concluded that noise exposure is more dangerous than is traditionally assumed based on the neurophysiological effects on mice after exposure to steady noise above the adjudication frequencies. The appellant was exposed to high impulse noise, which was not part of the 2009 study. Rather, the study addressed hearing loss at different frequencies. The fact that the appellant separated from service with excellent hearing bilaterally suggests that hearing loss occurred following active duty due to unrelated factors. Further, the audiometric evidence found in the appellant’s service treatment records does not support noise trauma which would cause tinnitus. Rather, there was no in-service hearing loss or threshold shift to indicate noise-induced hearing loss or tinnitus. Bilateral hearing loss Applying the facts in this case to the legal criteria set forth above, the Board finds that the preponderance of the evidence is against the claim of service connection for bilateral hearing loss. As set forth above, the appellant’s service treatment records reflect that a hearing loss disability was not present in service and there is no indication, nor is it contended, that bilateral hearing loss manifest to a compensable degree within one year of separation. Thus, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309. Nonetheless, service connection may be granted for a disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, however, the Board finds that the most probative evidence establishes that the appellant’s current hearing loss disability is not causally related to active service. The Board affords great probative weight to the September 2018 VA medical opinion with respect to bilateral hearing loss because it was based on a review of the claims file, consideration of the relevant medical history, and the opinion was accompanied by a detailed rationale. Indeed, the VA examiner explained why the 2009 study with respect to delayed-onset hearing loss was not relevant to the appellant’s claim. There is no competent opinion to the contrary. The Board has considered the appellant’s lay history of symptomatology related to his claimed disorder throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. The Board finds the VA medical opinion to be of greater probative weight than the appellant’s lay assertions. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Tinnitus The Board finds that the evidence is in relative equipoise as to whether service connection for tinnitus is warranted. With regard to the first element of a service connection claim, the evidence shows a current diagnosis of tinnitus. Clinical records and examination reports clearly establish a current diagnosis of tinnitus. Moreover, when a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disability is not a determination medical in nature, and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). Thus, the Veteran’s reports of tinnitus are also sufficient to establish the presence of a current disability. As set forth above, the second element for service connection is evidence of an in-service disease or injury. With respect to an in-service injury, the Board finds that the record does contain evidence of in-service noise exposure. The appellant has reported noise exposure and his personnel records reflect that his MOS was consistent with noise exposure. Thus, the Board finds that the record is sufficient to establish an in-service injury in the form of noise exposure. With respect to an in-service disease, the Board finds that the evidence is in equipoise. Again, tinnitus is an inherently subjective disability and is therefore readily capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014). Thus, the appellant is competent to report when he began experiencing tinnitus and the history of his symptoms. Where, as here, a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s lay statements and determine whether they support a finding of service incurrence. Id. If they do, such lay evidence is sufficient to establish service connection. Id. In this case, as reflected above, the appellant has reported the onset of his tinnitus was while serving in the military. Although the service treatment records are negative for complaints or findings of tinnitus, resolving reasonable doubt in the Veteran’s favor, the Board finds that the record is sufficient to establish an in-service disease, tinnitus. With respect to the third element, a nexus between the current disability and the in-service disease or injury, the Board finds the September 2018 VA medical opinion to the effect that the appellant’s current tinnitus is unrelated to service is probative, for the reasons discussed above. There is no medical opinion to the contrary. Although there is no probative evidence establishing a clear nexus for the appellant’s tinnitus, as set forth above, the law provides an alternate avenue for establishing service connection for certain chronic diseases, including an organic disease of the nervous system such as tinnitus. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Here, as set forth above, the record is sufficient to establish the onset of a chronic disease in service, tinnitus. Moreover, the Board notes that the appellant has competently and credibly reported that his tinnitus has continued since that time. The law provides that when a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b). Absent evidence of an intercurrent cause, and resolving all reasonable doubt in the appellant’s favor, the Board finds that the competent and credible evidence establishes that the Veteran’s tinnitus had its inception during active service and has existed since that time. Therefore, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, Associate Counsel 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.