Citation Nr: 20003772
Decision Date: 01/15/20	Archive Date: 01/15/20

DOCKET NO. 18-27 906
DATE: January 15, 2020

ORDER

Entitlement to service connection for bilateral hearing loss disability is denied.

Entitlement to service connection for tinnitus is granted. 

Entitlement to service connection for sleep apnea is denied. 

Entitlement to service connection for posttraumatic stress disorder (PTSD) with major depression based on military sexual trauma (MST) is granted.

REMANDED

Entitlement to service connection for human immunodeficiency virus (HIV) is remanded.

Entitlement to specially adapted housing is remanded.

Entitlement to a special home adaptation grant is remanded.

Entitlement to a certificate of eligibility for an automobile and adaptive equipment, or for adaptive equipment only, is remanded.

FINDINGS OF FACT

1. It is unclear whether the Veteran has current bilateral hearing loss for VA compensation purposes, due to invalid testing.  

2. The Veteran’s current tinnitus is the result of hazardous noise exposure on the flight line as the result of his military occupational specialty (MOS) as a F-15 avionics systems specialist and as a result of his participation in the Honor Guard, while serving for close to five years in the U.S. Air Force from 1987 to 1992. 

3. The Veteran’s sleep apnea did not manifest in service and is not otherwise related to his service in the U.S. Air Force.

4. There is an approximate balance of favorable and unfavorable evidence as to whether there is credible support (including in-service behavioral changes) for the Veteran’s alleged in-service military sexual trauma (MST) while stationed in Iceland in 1989 and 1990. 

5. There is an approximate balance of favorable and unfavorable evidence as to whether the Veteran has a current diagnosis of PTSD with major depression (per the DSM-5) due to in-service MST while stationed in Iceland in 1989 and 1990.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss disability have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

2. Resolving all reasonable doubt in his favor, the criteria for service connection for tinnitus have been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

3. The criteria for service connection for sleep apnea have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for PTSD with major depression have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from August 1987 to June 1992 in the United States Air Force.  

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from September 2016, October 2016, March 2017, and July 2017 rating decisions issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

Throughout 2019, the Veteran’s attorney submitted additional VA and private treatment records and medical opinions, after certification of the Veteran’s appeal in January 2019.  However, in a February 2019 attorney letter, the Veteran waived his right to have the AOJ initially consider this evidence.  Therefore, the Board accepts this additional medical evidence for inclusion in the record and consideration by the Board at this time.  See 38 C.F.R. §§ 20.901, 20.1305(c) (2019).  In any event, the Board would have considered this additional medical evidence anyway, without the need for any AOJ review.  That is, there is now an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a Substantive Appeal filed on or after February 2, 2013, unless the claimant or claimant’s representative requests in writing that the AOJ initially review such evidence.  See 38 U.S.C. § 7105(e)(1).  In the present case, the Veteran’s Substantive Appeal was received in May 2018, which is after the February 2, 2013 effective date of the new statute.  Therefore, under both the automatic waiver provisions and the waiver of additional evidence submitted by the Veteran’s attorney in February 2019, the Board can proceed with initial review of the additional medical evidence, without a referral to the AOJ.    

 

I.  VA’s Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2019).  The VCAA applies to the instant service connection claims at issue.  However, the Veteran was provided adequate VCAA notice in July 2016 and November 2016 letters.  The Veteran is also represented by an attorney.

Moreover, for the issues being denied by the Board in the present decision - service connection for hearing loss and sleep apnea, neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that the Board has an obligation to read filings in a liberal manner, but that obligation does not require the Board to “search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 

In fact, in January 2019 and February 2019 correspondence from the Veteran’s attorney, the Veteran’s attorney proffered substantive arguments for the claims of service connection for PTSD and HIV.  For these particular service connection issues, in the present decision the Board is granting service connection for PTSD and remanding service connection for HIV for further development.  But in contrast, both the Veteran and his attorney have neglected to proffer any substantive factual or legal arguments or a request for further development for the remaining issues on appeal – service connection for hearing loss, tinnitus, and sleep apnea, as well as the auto / adaptive claim and specially adapted housing claim.  According to Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), the Board does not have to address procedural arguments for the duty to notify or duty to assist that either the Veteran or his attorney failed to raise.  Instead, “[a] veteran’s interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution.”  Id.  

II.  Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service — the “nexus” requirement.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

VA is to give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits.  38 U.S.C. § 1154(a).  Thus, there is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

Therefore, the Board will assess the competence and credibility of lay statements.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet.  See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 307-10.  The Federal Circuit has also clarified that lay evidence can be competent and sufficient evidence of a diagnosis or of the etiology of a particular condition 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, 581 F.3d at 1316.  See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection.  Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

	A.  Hearing Loss

The Veteran contends he developed a bilateral hearing loss disability as the result of noise exposure during service.  Specifically, he has asserted that he was exposed to hazardous noise as the result of his MOS as a F-15 avionics systems specialist, while serving for close to five years in the U.S. Air Force from 1987 to 1992.  His DD Form 214 and service personnel records (SPRs) confirm that he did serve in this capacity.  In particular, he indicates this MOS entailed exposure to hazardous noise from jet aircraft, when repairing them at or near the flight line for close to five years.  It appears from his SPRs he did wear hearing protection.  SPRs also confirm exposure to hazardous noise from firearms while assigned to the Honor Guard.  Post-service, as a civilian, he worked with computers, without any significant occupational or recreational noise exposure.  He does not allege in-service symptoms of hearing loss or continuity of symptomatology for hearing loss thereafter.  Instead, he alleges the “gradual” onset of hearing loss “for years.”  See May 2017 Application for Compensation (VA Form 21-526EZ) for service connection for hearing loss and tinnitus; May 2017 Veteran statement; October 2017 Veteran letter to Congresswoman; January 2018 VA consult.

Upon review of the evidence of record, the Board denies the appeal for service connection for bilateral ear hearing loss disability. 

In the present case, the Veteran’s sensorineural hearing loss (an “organic disease of the nervous system”) is considered by VA to be a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).  Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated “chronic disease” in service (or within the presumptive period under § 3.307), or “continuity of symptoms” of such a disease after service, the disease shall be presumed to have been incurred in service.  Walker, 708 F.3d 1335-1337.  Service connection for certain enumerated diseases, such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  But according to VA standards, impaired hearing will only be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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.  

Service treatment records (STRs) dated from 1987 to 1992 are negative for any complaint, treatment, or diagnosis of bilateral ear hearing loss disability under § 3.385.  This fact is not in dispute.  STR audiograms of record dated in July 1988 and March 1989 reveal normal hearing under § 3.385 and no significant threshold shifts.  The July 1988 audiogram report remarked the Veteran was previously issued hearing protection.  At an October 1991 STR periodic examination, the Veteran again exhibited normal hearing under § 3.385.  The Veteran’s STRs also fail to reveal any significant auditory shifts in the frequencies of 500 to 4000 Hertz.  

As such, under 38 C.F.R. § 3.303(b), this case does not meet the test for “chronic disease” as set forth in lieu of a medical nexus.  Although sensorineural hearing loss is an enumerated “chronic disease” under 38 C.F.R. § 3.309(a) (listing named chronic diseases), sensorineural hearing loss in the present case is not “shown” in service.  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.”  38 C.F.R. § 3.303(b).  The Veteran’s STRs in the present case fail to establish a combination of manifestations sufficient to identify the disease entity of sensorineural hearing loss.  That is, 38 C.F.R. § 3.303(b) equates “shown in service” with a reliable diagnosis of the chronic disease while in service.  Walker, 708 F.3d at 1339.  No such diagnosis of sensorineural hearing loss is of record during service.  This is undisputed.

As to in-service incurrence, however, the Department of Defense’s Duty MOS Noise Exposure Listing indicates that an MOS as an F-15 avionics systems specialist involved a “high” probability of noise exposure during service.  In-service hazardous noise exposure is therefore consistent with the circumstances of the Veteran’s duties in service.  See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a).  In addition, the Veteran was in the Honor Guard which would entail exposure to hazardous noise from gunfire.  All of this evidence confirms hazardous noise exposure during service for the Veteran.   

Moreover, the Board emphasizes that to establish service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  That is, a claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service.  Hensley v. Brown, 5 Vet. App. 155, 164 (1993).  See also 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d).  Therefore, the lack of evidence of bilateral hearing loss disability per § 3.385 or any hearing loss complaints during active service or within one year of service is not fatal to the Veteran’s claim; rather, it is merely one factor to be considered. 

Post-service, there is no evidence or lay allegation of sensorineural hearing loss in either ear within one year of discharge from service in 1992 or 1993.  As such, the presumption of in-service incurrence for chronic diseases during service or within one year of service is not for application.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  In fact, PULHES is a rating system widely employed by armed services physicians in examination reports for induction and separation.  The “P” stands for “physical capacity or stamina”; the “U” for “upper extremities”; the “L” for “lower extremities”; the “H” for “hearing and ear”; the “E” for “eyes”; and the “S” for “psychiatric.”  See McIntosh v. Brown, 4 Vet. App. 553, 555 (1993).  A profile score, or serial, is assigned on a scale from 1 to 4 for each of the six categories, with “1” indicating the highest level of fitness.  To this point, within one year of discharge, a November 1992 National Guard profile serial report assigned a “1” to the Veteran under the PULHES profile for “hearing and ear.”  Then, as now, the number “1” indicated that an individual possessed a high level of medical fitness and, consequently, was medically fit for that category.  Odiorne v. Principi, 3 Vet. App. 456, 457 (1992).  

With regard to continuity of symptoms, for chronic diseases listed in 38 C.F.R. § 3.309(a) — such as sensorineural hearing loss —service connection may also be established by showing “continuity of symptoms,” which requires a claimant to demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the post-service symptoms.  38 C.F.R. § 3.303(b) (2019); see Walker, 708 F.3d at 1340 (Fed. Cir. 2013) (holding that only those chronic diseases listed in 38 C.F.R. § 3.309 are subject to service connection by continuity of symptoms described in § 3.303(b).  The correct understanding of the “condition noted during service” is that the condition is one that is indicative of but not dispositive of a chronic disease.  Walker, 708 F.3d at 1339.  Stated another way, continuity of symptomatology after discharge is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, i.e., “when the fact of chronicity in service is not adequately supported.”  38 C.F.R. § 3.303(b).  See also Walker, 708 F.3d at 1339-40.  

In the present case, as no sensorineural hearing loss diagnosis and no hearing loss symptoms were “noted” in service for purposes of continuity of symptomatology, the theory of continuity of symptomatology does not suffice to establish that the Veteran incurred a chronic disease (sensorineural hearing loss) during service from 1987 to 1992.  Id

Post-service, with regard to continuity of symptomatology of hearing loss symptoms, there is no neither a lay assertion from the Veteran, nor any clinical evidence of continuity of hearing loss symptoms subsequent to his discharge from service in June 1992.  See 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1335-1337.  In particular, in VA treatment records dated from 1994 to 2014, no symptoms of hearing loss or any other auditory complaints were reported by the Veteran.  A December 1998 VA preventive health screen revealed “no hearing impairments.”  A March 2001 VA audiology note showed a normal audiometric examination in both ears - hearing was “within normal limits, A.D. < A.S.”  A May 2009 VA ENT clinic progress note diagnosed sinusitis and rhinitis (his ears felt “plugged,”) but hearing is “ok.”  A December 2009 VA nursing pre-procedure note recorded “no problems with hearing.”  An April 2011 VA blind rehabilitation consult documented that the Veteran denied any hearing loss or any use of a hearing aid.  An April 2011 VA VISOR training noted remarked the Veteran exhibited “no hearing loss barriers affecting computer usage.”  A May 2012 VA pain note commented that “no hearing changes reported” for the Veteran.

If it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The Board has considered that symptoms of hearing loss, not treatment, are the essence of any evidence of continuity of symptomatology.  See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991).  In short, the post-service clinical evidence of record and the Veteran’s own silence in his lay assertions regarding symptoms of hearing loss in-service and for many years post-service is significantly probative evidence weighing against any continuity of symptoms of hearing loss from the time of discharge from service in 1992.  In fact, the first evidence of a report of auditory symptoms from the Veteran was a diagnosis of tinnitus in an October 2015 VA addendum note.  But even at that time, a November 2015 VA consult and a March 2017 VA consult added that hearing loss was not a concern at those times, with no referral for an audiology examination.  

Post-service, the existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997).  In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

On the issue of the existence of a current hearing loss disability under § 3.385, a June 2017 VA audiology examination revealed pure tone thresholds in decibels as follows:

HERTZ

	500	1000	2000	3000	4000

RIGHT	65	90	90	90	85

LEFT	90	100	105+	105+	105+

Speech audiometry under the Maryland CNC word list revealed speech recognition ability of 76 percent in the right ear and 56 percent in the left ear.  Under normal circumstances, these results would establish a current bilateral hearing loss disability as defined by VA in 38 C.F.R. § 3.385.

However, the June 2017 VA audiology examiner concluded that the Veteran’s audiology test results were not “valid” for rating purposes (not indicative of organic hearing loss).  The VA audiology examiner explained that the Veteran was instructed several times, but his results were not consistent.  The Veteran was able to hear and respond appropriately to questions with inserting an earphone and with headphones and when the VA examiner was standing behind him.  Yet the Veteran was unable to hear at the maximum levels of the audiometer.  The Veteran would flinch at reported thresholds even after reinstruction.  His results were worse in the left ear, which the Veteran reported to be the better ear.  In addition, the VA examiner concluded that the use of the speech discrimination scores was not appropriate for the Veteran due to “poor inter-test consistency for speech audiometry.”

Similarly, several months later, a December 2017 VA ENT consult and VA audiology note assessed profound hearing loss from 250Hz to 8000Hz in the right ear, and severe to profound hearing loss from 250Hz to 8000Hz in the left ear.  The audiologist added that speech discrimination ability was “good” in both ears.

However, the VA audiologist found that the Veteran’s puretone audiometry scores were “invalid” due to poor inter-test reliability.  The speech results were much better than what the pure tone results indicate.  Moreover, the Veteran was observed to easily converse, answer questions, and follow instructions when talking at a normal conversational level (even when not looking at the person speaking).  The VA audiologist commented this was not consistent with the Veteran’s puretone results.  Thus, the test results were once again considered “invalid.”  Finally, the VA audiologist advised that the Veteran was reinstructed on the proper test procedure, but with no improvement in the test results.

What’s more, a June 2018 VA consult noted gradual hearing loss “for years.”  However, the VA clinician added that although the Veteran’s audiogram showed severe bilateral hearing loss, there were “inconsistent responses.”  

In summary, due to the “invalid” test results at multiple times, there is no probative evidence of record that establishes the existence of bilateral hearing loss disability for the Veteran under the clear requirements of 38 C.F.R. § 3.385.  In other words, the credible and probative evidence of record does not demonstrate that the Veteran’s auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; that the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or, that there are speech recognition scores using the Maryland CNC Test that are less than 94 percent. 

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997).  In fact, in Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007), the Court specifically upheld the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes.  Evidence must show that the Veteran currently has the disability for which benefits are being claimed.  Because the most probative evidence of record has not clearly established that the Veteran has a current diagnosis of bilateral hearing loss under the clear requirement of 38 C.F.R. § 3.385 during the pendency of the appeal, the Board finds that the Veteran would not be entitled to service connection.  

Although the VA audiology testing is “competent” medical evidence to establish a current hearing loss disability, a determination must be made as to whether the VA audiology testing evidence was “credible” in showing a current hearing loss disability for this Veteran.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  Factors to consider for purposes of credibility of evidence include facial plausibility, internal consistency, consistency with other evidence, self-interest or bias, bad character, malingering, and lay statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996).  In particular, personal interest may affect the credibility of the evidence.  Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).  Here, multiple VA audiologists concluded that the Veteran’s audiology test results were “invalid” due to internal inconsistencies.  Therefore, the VA audiology testing of record is competent evidence, but not credible or probative, in order to establish a current hearing loss disability for the Veteran under the clear requirements of 38 C.F.R. § 3.385.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board, as fact finder, is responsible for assessing the credibility, competence, and probative value of evidence).

With regard to a nexus, there is no probative evidence of record establishing a link between any current bilateral sensorineural hearing loss and the Veteran’s period of active service, to include his noise exposure on the flight line.  Holton, 557 F.3d at 1366.  See also 38 C.F.R. § 3.303(a), (d).  Absent such evidence of a nexus, service connection is not warranted for bilateral hearing loss.  And notably, neither the Veteran nor his attorney has submitted any nexus opinion for the bilateral hearing loss issue on appeal.  

The June 2017 VA audiology examiner opined she could not provide a medical opinion regarding the etiology of any alleged hearing loss “without resorting to speculation.”  This was because there was no significant change in thresholds in the right ear and left ear during his service and the VA examiner was unable to determine the Veteran’s pure tone thresholds due to inconsistent tests results.  The Court has held that “[a]n examiner’s conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion... however, the examiner must explain the basis for such an opinion, or the basis must otherwise be apparent in the Board’s review of the evidence.”  Jones v. Shinseki, 23 Vet. App. 382, 390 (2010).  In the present case, the June 2017 VA audiology examiner correctly explained her basis for the speculative medical opinion.  

Although the June 2017 VA audiology opinion is still competent and probative, if the question of etiology / nexus cannot be determined without resorting to speculation, then it has not been proven to the level of equipoise.  Chotta v. Peake, 22 Vet. App. 80, 86 (2008) (Board may not award benefits when the award would be based upon pure speculation).  The Court has also noted that VA is not bound to proceed through multiple iterations of medical opinions until it declares that no further examinations would assist the claimant.  In the Court’s view, that assessment is inherent in a finding that the duty to assist has been fulfilled.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (Board may be required to obtain further medical evidence “unless the medical evidence itself indicates that determining the cause is speculative”); see also Roberts v. West, 13 Vet. App. 185, 189 (1999) (observing that “the fact that [a] medical opinion was inconclusive... does not mean that the examination was inadequate.”)

With regard to the Veteran’s inconsistent audiology testing multiple times during the appeal, the Court recently reaffirmed that the duty to assist is not a one-way street.  Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019).  The duty to assist "does not encompass 'a duty to prove a claim with the claimant only in a passive role.'" Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc) (quoting Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992)), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).  As such, the Veteran is advised that he must always cooperate with the development and adjudication of his hearing loss claim.  

With regard to lay evidence of sensorineural hearing loss, a lay person such as the Veteran is competent to describe his/her hearing loss symptoms through the years.  See generally Barr v. Nicholson, 21 Vet. App. 303 (2007).  However, 38 C.F.R. § 3.385 defines when hearing loss is a “disability” for purposes of service connection. Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Lay evidence cannot establish that the criteria of § 3.385 have been currently met.  

With regard to lay evidence of a nexus of current bilateral hearing loss to the Veteran’s active service, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  The Veteran is indeed competent to report purported symptoms of hearing loss during and after service, as well as hazardous noise exposure.  See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 307-09.  However, the Veteran has not alleged any symptoms of hearing loss during service or for many years thereafter.  Also, he is not competent, without medical training or expertise, to establish a nexus between any current hearing loss (that began many years after discharge from service), to his confirmed in-service hazardous noise exposure.  See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau, 492 F.3d at 1377.  Moreover, as to the Veteran’s lay assertions with regard to nexus, he also does not meet any of the three exceptions for competent lay evidence as listed under Jandreau.  The Veteran has never indicated that any medical professional offered a favorable nexus opinion for his alleged bilateral hearing loss.

Moreover, in January 2019 and February 2019 correspondence from the Veteran’s attorney, the Veteran’s attorney proffered substantive arguments on the claims of service connection for PTSD and HIV.  But in contrast, both the Veteran and his attorney have neglected to proffer any substantive factual or legal arguments or a request for further development for the issue of service connection for bilateral hearing loss.    

Accordingly, the preponderance of the evidence is against the Veteran’s service connection claim for bilateral hearing loss.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

B.  Tinnitus

The Veteran contends he developed tinnitus as the result of the same hazardous noise exposure during service discussed in detail above.  

The U.S. Court of Appeals for Veterans Claims (Court) has determined that tinnitus is an “organic disease of the nervous system,” and is therefore included as a “chronic” disease under 38 C.F.R. § 3.309(a).  See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015).  Service connection for an enumerated “chronic disease” such as tinnitus, listed under 38 C.F.R. § 3.309(a) can also be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  

Tinnitus is defined as “a noise in the ears such as ringing, buzzing, roaring, or clicking.”  Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting Dorland’s Illustrated Medical Dictionary 1714 (28th ed. 1994)).  Tinnitus is a type of disorder capable of lay observation and description.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).  On this point, the onset of tinnitus “may be gradual or sudden, and individuals are often unable to identify when tinnitus began.”  “Tinnitus can be triggered months or years after an underlying cause (such as hearing loss) occurred... [and] [t]herefore, delayed-onset tinnitus must be considered.”  See VBA Training Letter 10-02 (March 2010) at page 5.  As such, in the present case, the absence of any in-service medical documentation of tinnitus in the Veteran’s STRs and the absence of any allegation of in-service tinnitus from the Veteran in this case would not be fatal to the tinnitus claim.

Upon review of the evidence of record, the Board grants the appeal for service connection for tinnitus. 

As to the first requirement for a service-connection claim, the Veteran meets the criteria for proof of a current disability for tinnitus.  See 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328 (1997).  Specifically, the June 2017 VA audiology examiner diagnosed the Veteran with current tinnitus.  Also, a December 2017 VA ENT consult and VA audiology note assessed tinnitus for the Veteran.  It was described as a high pitch sound in his right ear.  Thus, the existence of a current tinnitus disability is undisputed. 

As to the second requirement of in-service incurrence, STRs dated from 1987 to 1992 are negative for any complaint, treatment, or diagnosis of tinnitus.  Regardless however, as noted above the Department of Defense’s Duty MOS Noise Exposure Listing indicates that an MOS as an F-15 avionics systems specialist involved a “high” probability of noise exposure during service.  In addition, the Veteran was in the Honor Guard which would entail exposure to hazardous noise from gunfire.  In-service hazardous noise exposure is therefore consistent with the circumstances of the Veteran’s duties in service.  See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a).  The absence of in-service medical documentation of tinnitus in this case is not fatal to the claim.  

As to the third requirement of a nexus, the Board finds the Veteran’s statements both competent and credible as to his in-service and continuing post-service tinnitus symptoms while on the flight line in the Air Force, as well as his in-service hazardous noise exposure and acoustic trauma.  See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 307-09.  Unlike his symptoms of hearing loss, the Veteran has consistently reported that his first symptoms of tinnitus began in 1990 while in the Air Force, whereas his hearing loss began many years after discharge.  He added that everyone he worked with on the flight line during active duty has developed tinnitus.  See e.g., May 2017 Veteran statement; June 2017 VA audiology examination; October 2017 Veteran letter to Congresswoman; December 2017 VA ENT consult and VA audiology note.  Although an etiological relationship for tinnitus has not been demonstrated through competent medical opinion evidence, the absence of a “valid medical opinion” is not an absolute bar to service connection, particularly where, as here, the lay evidence of record is sufficient to satisfy the final nexus prong.  Davidson, 581 F.3d at 1316.  In this regard, the Board acknowledges that the June 2017 VA audiology examiner opined she could not provide a medical opinion regarding the etiology of the Veteran’s current tinnitus “without resorting to speculation.”  This was because the VA examiner was unable to determine the Veteran’s pure tone thresholds due to inconsistent tests results.  Although the VA examiner’s opinion makes sense in the context of sensorineural hearing loss, which requires objective verification through audiology testing under 38 C.F.R. § 3.385, the same rationale does not hold true for tinnitus.  Tinnitus is defined as “a noise in the ears such as ringing, buzzing, roaring, or clicking.”  Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting Dorland’s Illustrated Medical Dictionary 1714 (28th ed. 1994)).  Tinnitus is distinguishable in that tinnitus is a type of disorder capable of lay observation and description.  Charles, 16 Vet. App. at 374.

The Board finds no overt reason to doubt the credibility of the Veteran’s lay assertions that, during service, he had hazardous noise exposure and episodes of tinnitus, and many years later his ringing in the ears has continued, which post-service occurs intermittently.  See Barr, 21 Vet. App. at 310.

Accordingly, service connection for tinnitus is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The tinnitus claim is granted. 

C.  Sleep Apnea

The Veteran contends that his current sleep apnea is related to his active duty in the Air Force from 1987 to 1992.  See July 2016 Supplemental Claim for service connection for sleep apnea (VA Form 21-526b).  However, neither the Veteran nor his attorney have provided any substantive argument of record as to when his sleep apnea began and how precisely it is related to his service in the Air Force.   

Upon review of the evidence, the Board denies the appeal for service connection for sleep apnea.   

Initially, sleep apnea is not one of the enumerated “chronic disease[s]” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on “chronic” symptoms in service and “continuous” symptoms since service at 38 C.F.R. § 3.303(b) do not apply here.  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).  Instead, 38 C.F.R. § 3.303(a) and (d) apply in the present case for the sleep apnea disorder on appeal.  

The first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran has a current disability.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997).  Here, a February 2016 VA sleep medicine diagnostic study report diagnosed the Veteran with obstructive sleep apnea.  Thus, it is undisputed the Veteran has a current sleep apnea disorder.  The remaining question is whether symptomatology from his current sleep apnea first manifested during his period of service in the Air Force, or is otherwise related to an event, injury, or incident during his period of active service. 

As to the second requirement of in-service incurrence, the Veteran’s STRs dated from 1987 to 1992 are negative for any complaints, treatment, or diagnosis of sleep apnea.  There was some mention of fatigue during service, but within the context of multiple upper respiratory infections.  There was no mention in the Veteran’s STRs of headaches, apneas, hypopneas, snoring, daytime somnolence, or other possible indicia of sleep apnea.  Therefore, the Veteran’s STRs provide no evidence in support of the incurrence of sleep apnea.  See 38 C.F.R. § 3.303(a).  

As previously noted, sleep apnea is not an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on “chronic” symptoms in service and “continuous” symptoms since service would not apply here, even if for the sake of argument, the Veteran had alleged them. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at1338-39.  

Post-service, with regard to lay evidence, the Veteran is competent as a lay person to report continuing, persistent symptoms of sleep apnea in 1992 onwards after his period of military service.  Layno, 6 Vet. App. at 469.  See also 38 C.F.R. § 3.159(a)(2).  But the Veteran has not done so in the present case.  That is, post-service, there is no lay assertion from the Veteran or any clinical evidence suggesting or demonstrating frequent and persistent symptoms of sleep apnea subsequent to his discharge from the Air Force in 1992.  In VA treatment records dated from 1994 to 2000, he occasionally reported fatigue in the context of his HIV diagnosis and HIV treatment.  But with no mention of sleep apnea or snoring. 

In fact, post-service, approximately eight years after discharge, according to a May 2000 VA primary care note, he first reported “increased fatigue, feels worn out even after a good night’s sleep.  Also has headaches 4-5 times a week.”  At this time in the early 2000s, the etiology of his symptoms was unclear in VA and SSA treatment records, as he also had HIV, vision problems, and depression, which his symptoms were associated with in these clinical records.  In a July 2012 VA attending outpatient note, the Veteran reported “restless legs.”  He was also “tired in afternoon, whether or not activity.”  The VA clinician at the time in July 2012 first mentioned sleep apnea as a possibility, but the Veteran’s partner did not notice any irregular breathing at night when the Veteran slept.  A December 2012 VA attending outpatient note again remarked the Veteran was feeling “tired, but no obvious sleep apnea.  No family history of sleep apnea.”  There was also “no snoring.”  His sleep apnea screen at the time was “low risk.”  An October 2014 VA infectious disease attending note found the Veteran to be “very tired in afternoon.”  A sleep apnea screen was warranted, but the Veteran was not at “the highest risk.”  Low energy during the day and some snoring were noted.  On occasion, the Veteran’s partner noticed the Veteran stops breathing in his sleep, and snorts to start breathing again.  Finally, a February 2015 VA addendum note indicated the Veteran may need a sleep study to rule out sleep apnea as a contributing factor to the Veteran’s “excessive daytime tiredness.”  The Veteran was finally diagnosed with sleep apnea in a February 2016 VA sleep study.  

In summary, there is no lay assertion from the Veteran or any clinical evidence of record suggesting or demonstrating frequent and persistent symptoms of sleep apnea subsequent to his discharge from the Air Force in 1992, until many years later.  The Board emphasizes that to establish a nexus, there is no requirement that a Veteran seek immediate post-service medical treatment for a sleep apnea condition.  The mere absence of medical records does not contradict a Veteran’s statements about his symptom history.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  But here, as a layperson, the Veteran has not provided any details about his symptom history with regard to sleep apnea.  Moreover, a prolonged period without medical or lay complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  In short, this long period without lay or medical evidence of sleep apnea weighs against the claim. 

Post-service, as to the third requirement of a nexus, there is no probative medical evidence of a nexus or link between the Veteran’s current obstructive sleep apnea and his service in the Air Force from 1987 to 1992.  Holton, 557 F.3d at 1366.  See also 38 C.F.R. § 3.303(a), (d).  In fact, a March 2017 VA psychological examination (DBQ) remarked that the Veteran has obstructive sleep apnea that was diagnosed in 2016.  The VA examiner added that the Veteran’s obstructive sleep apnea is “less likely as not” service-connected.  Neither the Veteran nor his attorney has submitted any favorable nexus opinion for sleep apnea.  

Moreover, in January 2019 and February 2019 correspondence from the Veteran’s attorney, the Veteran’s attorney proffered substantive arguments on the claims of service connection for PTSD and HIV.  But in contrast, both the Veteran and his attorney have neglected to proffer any substantive factual or legal arguments or a request for further development for the service connection for sleep apnea issue on appeal.  

Accordingly, the preponderance of the evidence is against the Veteran’s service connection claim for sleep apnea.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

	D.  PTSD with Major Depression

Service connection for PTSD has unique evidentiary requirements.  It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-5); (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).  

If VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran’s lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor.  Instead, the record must contain credible supporting evidence that corroborates the veteran’s testimony or statements.  38 C.F.R. § 3.304(f); Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996).  

With regard to an actual diagnosis of PTSD, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  The Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  In this regard, the Federal Circuit has held that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify.”  Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014).  Regardless, the Board acknowledges the Veteran is competent to report psychiatric symptoms and stressors both during and after service.  See 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377 (discussing that Veteran is competent to report a contemporaneous medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms).  

Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5).  See 79 Fed. Reg. 45,094 (August 4, 2014).  Changes brought by the DSM-5 also involved modifications to diagnostic criteria, including how to determine qualifying stressors or onset of PTSD.  Therefore, when adjudicating service connection claims based on mental health disabilities that were pending before the AOJ on or after August 4, 2014, the Board must ensure that the Veteran received an adequate VA examination or medical opinion in light of the DSM-5.  See Molitor v. Shulkin, 28 Vet. App. 397, 410-11 (2017).  

VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014.  See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015).  In the present case, the AOJ certified the Veteran’s service connection for PTSD appeal to the Board in January 2019, which is after August 4, 2014.  Thus, the amended 38 C.F.R. § 4.125 conforming to the DSM-5 is applicable in the present case for the PTSD issue on appeal.  

In this case, the Veteran does not allege that he was in combat.  Instead, the Veteran contends that he has PTSD attributable to multiple incidents of military sexual trauma (MST) while stationed overseas in the U.S. Air Force at Keflavik Naval Air Station in Iceland from 1989 to 1990.  He claims that after a night out with friends in August 1989 at a bar in Iceland, he was gang-raped by four Navy sailors.  He was subsequently sexually assaulted and raped 7-8 more times during his active duty service in Iceland by the same Navy sailors.  He maintains he reported the first MST incident to his superior officers, but they were dismissive of his claim of rape at the time.  Therefore, he did not report the additional 7-8 sexual assaults he endured over the course of a year in Iceland.  He adds that the assailants threatened to inform his superior officers that he was a homosexual, which could have led to a dishonorable discharge from the Air Force.  Thus, he kept quiet.  A fellow service member, S.M., who served with the Veteran and was his friend, corroborates that she noticed behavior changes in the Veteran after the alleged initial MST in 1989.  She also corroborates that the Veteran on various occasions was rather hastily taken out of bars by several “Navy guys.”  The Veteran says as a result of the multiple MST he experienced, his performance deteriorated, he became HIV positive, his primary relationship ended, he became obsessive, he requested a duty assignment change, and he developed depression and anxiety.  Over time, the Veteran contends that he developed PTSD.  For many years post-service, he kept quiet about the MST incidents that occurred during service due to the attached shame and stigma.  He did not even tell his partner until many years later.  See October 26, 2016 VA consult for MST and addendum; November 2016 buddy statement from fellow service member S.M.; November 2016 Veteran stressor statement; November 2016 statement in support of PTSD secondary to personal assault (VA Form 21-0781a); December 2016 Veteran statement; October 2017 Veteran letter to Congresswoman; September 2019 Veteran letter to Senator McSally; January 2019 and February 2019 attorney letters. 

The veteran’s PTSD claim is predicated on allegations of sexual assaults and sexual harassment while he was in the military.  The Court has set a relatively low bar for interpreting a claim for PTSD as one involving a personal assault stressor for which the provisions of 38 C.F.R. § 3.304(f)(5) are applicable.  See, e.g., Bradford v. Nicholson, 20 Vet. App. 200 (2006) (veteran alleged that his sergeant kicked him down a set of stairs).  In this regard, VA has defined “personal trauma” in a broad sense.  Personal trauma for the purpose of VA disability compensation claims based on PTSD refers broadly to stressor events involving harm perpetrated by a person who is not considered part of an enemy force.  Examples include assault, battery, robbery, mugging, stalking, and harassment.  Military sexual trauma (MST) is a subset of personal trauma and refers to sexual harassment, sexual assault, or rape that occurs in a military setting.  

Because personal assault is an extremely personal and sensitive issue, many incidents are not officially reported, which creates a proof problem with respect to the occurrence of the claimed stressor.  In such situations, it is not unusual for there to be an absence of service records documenting the events the veteran has alleged surrounding the assault.  The victims of such trauma may not necessarily report the full circumstances of the trauma for many years after the trauma.  

Therefore, the Federal Circuit has held that VA cannot use the absence of service record documentation or a veteran’s lack of report of in-service sexual assault to military authorities as evidence to conclude that a sexual assault did not occur.  AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013).  And for PTSD claims in general, corroboration of every detail of a claimed stressor, including the veteran’s personal participation, is not required; rather, a veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure.  See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (quoting Suozzi v. Brown, 10 Vet. App. 307 (1997)).  

When a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident.  38 C.F.R. § 3.304(f)(5); see also Patton v. West, 12 Vet. App. 272, 277 (1999).  

Examples of such alternative evidence include but are not limited to: records from law enforcement authorities; rape crisis centers; mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy.  38 C.F.R. § 3.304(f)(5).  Personal diaries and journals can also be relevant.  

If primary evidence, such as STRs and SPRs, contain no explicit documentation that personal trauma occurred, and alternative sources of evidence do not provide credible supporting evidence of the trauma, evidence of behavioral changes around the time of, and after, the incident(s), may constitute a “marker” of a personal trauma PTSD stressor.  The term “marker” means an indicator of the effect or consequences of the personal trauma on the Veteran.  A marker could be one or more behavioral events, or a pattern of changed behavior.  Even if there is no reference to the personal trauma, evidence of behavior changes may circumstantially support the possibility that the claimed stressor occurred

Evidence of behavior changes or “markers” following the claimed assault, which may constitute credible evidence of the stressor include, but are not limited to:  a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes.  38 C.F.R. § 3.304(f)(5).

In addition, other relevant behavior changes or “markers” include increased use of leave with no apparent reason; medical treatment at a clinic without any specific diagnosis; use of or increased interest in pregnancy or STD tests around the time of the incident; changes in prescription usage and over-the-counter usage; increased disregard for any type of authority; treatment for physical injuries around the time of the alleged trauma, but without mention of the actual trauma; and the breakup of a primary relationship.  Notably, behavior changes can be verified through both documentary evidence and lay statements.  Id. 		

For personal assault PTSD claims, an after-the-fact medical opinion can also serve as the credible supporting evidence of the stressor.  That is, VA examiners can interpret the evidence of record to confirm the occurrence of in-service sexual assaults, personal trauma, and harassment.  38 C.F.R. § 3.304(f)(5); Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011).  In fact, evidence of behavioral changes typically needs interpretation by a clinician in personal trauma claims.  The VA examiner should determine whether credible factual evidence of behavior changes demonstrated by the Veteran is consistent with the expected reaction or adjustment of a person who has been subjected to an assault.  If the VA examiner offers a credible, unequivocal, and non-speculative assessment that the evidence of record is consistent with the occurrence of the claimed assault, that opinion can constitute credible supporting evidence that the claimed in-service stressor actually occurred.  If the opinion is merely speculative, equivocal, contradictory, or otherwise insufficient for rating purposes, it should be returned for clarification.  If the VA examiner determines that a personal assault did occur, the VA examiner should then opine whether or not the Veteran has PTSD due to the confirmed personal assault.  

Upon review of the evidence of record, the Board concludes service connection for PTSD with major depression, on the basis of in-service military sexual trauma (MST), is granted.   

STRs dated from 1987 to 1992 are negative for any complaint, treatment, or diagnosis of PTSD or other acquired psychiatric disorder.  The Veteran’s STRs also fail to reveal any medical treatment for the Veteran after the alleged gang-rape incident in Iceland in 1989.  In any event, as to PTSD, an in-service diagnosis is not required.  See 38 C.F.R. § 3.304(f).  Nor is the occurrence of medical treatment required after an alleged assault occurs.  

Service personnel records (SPRs) document that the Veteran’s MOS was a F-15 avionics systems specialist, while serving for close to five years in the U.S. Air Force from 1987 to 1992.  SPRs also document that the Veteran served overseas at Keflavik Naval Air Station in Iceland at various times in 1989 and 1990.  However, both the STRs and SPRs fail to document any evidence of behavioral changes or “markers” around the time of, and after, the sexual assault incidents such as one or more behavioral events, or a pattern of changed behavior, a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes.  See 38 C.F.R. § 3.304(f)(5).

Post-service, VA treatment records confirm the Veteran was first treated for anxiety and depression in 2000, approximately eight years after discharge from service.  The first diagnosis of PTSD in the record is from 2016 VA mental health records and MST consults, in which the Veteran had a positive PTSD screen and was then diagnosed by VA psychiatrists and psychologists with PTSD due to his reported in-service military sexual trauma (MST) when stationed in Iceland.

Crucially, the evidence of record is mixed as to whether there is credible corroboration through alternative evidence and “markers” of the Veteran’s exposure to multiple incidents of MST while stationed overseas in the U.S. Air Force at Keflavik Naval Air Station in Iceland in 1989 and 1990.  38 C.F.R. § 3.304(f)(5); Cohen, 10 Vet. App. at 147; Moreau, 9 Vet. App. at 395.  

Also, the evidence of record is mixed as to whether the Veteran has a current disability of PTSD with major depression in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-5) as the result of multiple incidents of MST in Iceland in 1989 and 1990.  38 C.F.R. § 3.304(f).  

That is, the record is mixed and reflects several favorable and unfavorable medical opinions and treatment records and lay evidence pertinent to the essential criteria listed above necessary to establish service connection for PTSD based on sexual assault.  Simply stated, the evidence of record is at equipoise (50/50) on whether the Veteran endured multiple sexual assaults while stationed in Iceland in 1989 and 1990, in addition to whether a diagnosis of PTSD (per the DSM-5) due to the multiple in-service sexual assaults is proper here.  38 C.F.R. § 3.304(f)(5).  

In analyzing the evidence, the Board must determine, as a question of fact, both the weight and credibility of the evidence.  Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value.  The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence.  See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).

It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

With regard to the unfavorable evidence, VA mental health practitioners in treatment records dated from 1994 to 2016 have at various times determined that the Veteran did not have symptoms of PTSD.  The Veteran underwent VA PTSD screens in August 2000, August 2001, May 2004, July 2006, November 2008, October 2009, September 2013, and October 2015, but these PTSD screens were all negative.  The Veteran denied any relevant PTSD symptomatology at those times.  Moreover, in an August 2012 VA neurology attending note and, in an August 2012 VA, psychology note, the Veteran denied symptoms relevant to PTSD such as nightmares or guarding or numbness or detachment.  Instead, from 2000 to 2016, the Veteran was diagnosed with depression and anxiety in the context of nonservice-connected blindness, nonservice-connected health problems such as HIV, sleep apnea, osteoarthritis, sinusitis, financial difficulties, a lack of employment, and functional and daily life limitations.  

With regard to the unfavorable evidence, on multiple occasions prior to filing his November 2016 claim for compensation for PTSD, the Veteran denied the occurrence of military sexual trauma (MST) during his period of active duty from 1987 to 1992.  That is, on several occasions post-service, he advised VA medical personnel that no sexual abuse occurred to him while on active duty.  See e.g., February 2003 VA primary care nursing note; July 2005 VA nursing note.  However, the Board is also cognizant that the victims of sexual assaults may not necessarily report the full circumstances of the trauma for many years after the trauma, due to the perceived shame and attached stigma.  

With regard to the unfavorable evidence, as noted above, both the Veteran’s STRs and SPRs fail to document any evidence of behavioral changes or “markers” around the time of, and after, the sexual assault incidents such as one or more behavioral events, or a pattern of changed behavior, a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes.  See 38 C.F.R. § 3.304(f)(5).

With regard to the unfavorable evidence, a March 2017 VA psychological examiner (DBQ) concluded the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the DSM-5.  Instead, this VA examiner diagnosed persistent depressive disorder with anxious distress that was first diagnosed in 2000.  The VA examiner reasoned there is no indication of behavioral health issues in the military.  Post-service, the Veteran did not report behavioral issues until 2000 when he reported poor memory and fatigue.  He had a neuropsychological evaluation in 2000 that noted mild anxiety /depression related to situational stress (losing his eyesight).  The VA examiner pointed out that the Veteran denied any PTSD in various screens in VA treatment records. 

Moreover, the March 2017 VA psychological examiner found that given the Veteran’s history, chart review, and presentation, no support existed for military sexual trauma or PTSD.  Instead, the Veteran exhibited some anxiety / depression related to his loss of eyesight and the resulting change in his functional ability related to such, as well as various post-service nonservice-connected conditions. Consequently, the VA examiner opined that the Veteran’s persistent depressive disorder with anxious distress is “less likely as not” related to service.

The March 2017 VA psychological examiner further assessed there was no PTSD diagnosis – the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the DSM-5.  The VA examiner discussed in detail the Veteran’s alleged stressors – multiple incidents of MST in-service in Iceland in 1989 and 1990.  But the VA examiner reasoned that the Veteran’s STRs did not indicate any specific medical markers.  Also, the Veteran’s SPR performance records did not indicate any specific markers.  The Veteran pointed to a small decline in his review in 1991, but it was still noted that the Veteran was a recent retrainee yet was still an “Excellent Performer”.  The Veteran also remained in the Honors Guard until at least December 1991 per his SPRs.  The Veteran reported to the VA examiner that he was unable to have sex in any way due to his experiences in Iceland ending in 1990 until prior to 2014 or so.  However, this counters VA treatment records indicating the Veteran had sex in 2009, with a lack of libido at that time for only a few months that responded well to medications.  Thus, the March 2017 VA psychological examiner concluded the Veteran did not have PTSD.  

Conversely, with regard to the favorable evidence of record, VA mental health treatment records dated from 2016 to 2018 reveal a diagnosis of PTSD due to military sexual trauma (MST) in Iceland with significant ongoing symptoms.  His depressive disorder and anxiety were associated with this PTSD diagnosis.  He underwent individual and group therapy for his PTSD.  He was also prescribed psychiatric medications for his PTSD by VA clinicians.  VA MST notes dated in June 2017 and August 2017 emphasize that VA CPRS records “clearly” document a PTSD diagnosis and other relevant supportive information is present in the Veteran’s medical records.  An April 2017 VA psychiatry note completed by a VA psychiatrist who was counseling the Veteran provided a working diagnosis of PTSD related to MST in Iceland, and an unspecified depressive disorder, with recent setback due to the Veteran’s disability claim denial.  The VA psychiatrist noted the Veteran continued to have “significant” PTSD symptoms.  An October 2017 VA psychology E&M note by a VA psychologist remarked that the Veteran’s clinical diagnosis of PTSD due to his MST in Iceland “spoke for itself.”  The VA psychologist emphasized the Veteran’s BDI-2 and PCL-5 results were reviewed with the Veteran, supporting the above historical diagnoses of PTSD and depressive disorder.

With regard to the favorable evidence, in an undated chaplain opinion, a chaplain discussed how he has provided pastoral care to the Veteran over the years.  The chaplain noted the Veteran’s report of an in-service rape, which did occur.  The chaplain indicated there was a nexus between the Veteran’s in-service rape to his psychiatric anxiety and depression.  The Board is cognizant that examples of alternative evidence to corroborate an in-service sexual assault include statements from clergy.  See 38 C.F.R. § 3.304(f)(5).  

With regard to the favorable evidence, in a November 2016 buddy statement from a fellow service member (S.M.), a female friend of the Veteran, she described in detail the behavior changes she noticed in the Veteran in 1989 and 1990 while stationed together in Iceland.  The Veteran was upbeat and happy at first, but changed to being very dark, very unhappy, and not wanting to spend much time with his friends.  Despite S.M. asking him many times what was bothering him, the Veteran would not provide an answer.  The Veteran wanted to leave his Iceland assignment.  She also corroborates that the Veteran on various occasions was rather hastily taken out of bars by several “Navy guys.”  But she did not realize he was being sexually assaulted.  The Board is cognizant that examples of alternative evidence to corroborate an in-service sexual assault include statements from fellow service members.  See 38 C.F.R. § 3.304(f)(5).  

With regard to the favorable evidence, a July 2017 VA medical opinion from the Chief of Medicine at Indianapolis VAMC assessed that the Veteran’s in-service MST in Iceland caused PTSD.

With regard to the favorable evidence, in January 2019 and February 2019 attorney letters, the Veteran’s attorney advised that the Veteran has stated on various occasions that he never spoke of the in-service MST he endured with anyone except his spouse until recently, due to the powerful “stigma associated with a male being raped.”  The Veteran’s attorney added that in the absence of service records documenting the Veteran’s MST, credible and consistent lay statements and probative medical reports serve as sufficient evidence of the MST.

With regard to the favorable evidence, the Board has considered a December 2018 private psychological opinion for PTSD from a Ph.D. in psychology.  She performed a clinical interview of the Veteran on November 14, 2018.  In arriving at her opinions, she conducted a telephonic clinical examination with the Veteran as well as a review the entire VA claims file (4,503 pages) and other pertinent documents.

The December 2018 private psychologist, based on her careful review of the record, her professional experience, and her clinical interview with the Veteran, opined that the Veteran’s psychiatric symptoms align with DSM-5 diagnoses of PTSD and major depressive disorder.  She further opined that the Veteran’s psychiatric symptoms and resulting limitations of PTSD and major depression overlap and cannot be differentiated and attributed to each specific diagnosis.  

The December 2018 private psychologist concluded “it is at least as likely as not” that the Veteran’s PTSD and major depressive disorder developed as a result of the MST he endured during his 12-month service in Iceland and were present in “prodromal form” while he was still actively served in the Air Force.  This is demonstrated in the change of behavior described by the Veteran’s friend in the service (S.M.)  While serving on active duty in Iceland, the Veteran suffered MST, after which others noticed a change in his mood.  Subsequently, the Veteran tested positive for HIV.  Following the Veteran’s MST while serving in Iceland, the private psychologist opined “it is at least as likely as not” that his psychiatric symptom presentation emerged in prodromal form with the onset of nightmares and anxiety while he was still actively serving in the Air Force.  The MST stressor involved multiple violent and devastating sexual traumas.  He was gang raped over the course of a year in Iceland.  The Veteran reported he initially advised several NCOs and officers in his unit, but all of them seemed to discount the actions, with one of them actually hinting that maybe he had done something to ask for the beating.  The private psychologist indicated it must be highlighted that the Veteran never spoke of these MST issues with anyone except his spouse until recently, as he felt the stigma associated with a male being raped is way more powerful than the pain and the shame he was dealing with.  This is easily apparent considering the malicious, violent, and painful past that the Veteran relives over and over again every day, according to the private psychologist.   

This December 2018 private psychologist examination and opinion is corroborative evidence the Veteran endured multiple sexual assaults while stationed in Iceland in 1989 and 1990, while also establishing a nexus between a current diagnosis of PTSD (per the DSM-5) to the multiple in-service sexual assaults in Iceland.  38 C.F.R. § 3.304(f)(5); Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011).    

The Board can rely on this December 2018 private psychological medical opinion to adjudicate the PTSD issue, as opposed to remanding for any unnecessary additional opinion and delaying the Veteran’s appeal.  See 38 U.S.C. § 5125 (“[A] report of a medical examination administered by a private physician... may be accepted without a requirement for confirmation by an examination by a physician employed by the Veterans Health Administration if the report is sufficiently complete to be adequate for the purpose of adjudicating such claim.”); see also 38 C.F.R. § 3.326(b), (c) (2019) (stating that any examination report or statement from a private physician “may be accepted for rating a claim without further examination”) (emphasis added).  Moreover, the Court has held that VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant.  Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  

An adequate medical opinion with regard to etiology should consist of a thorough review of the claims file and discussion of the relevant evidence (including the disability in question), a consideration of the lay contentions of the Veteran, and clear conclusions with a reasoned supporting rationale.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).  The Board errs by relying on an inadequate opinion.  Ardison v. Brown, 6 Vet. App. 405, 407 (1994).  However, a medical opinion does not have to be perfect; rather, it has to be adequate.  For instance, there is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file.  Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners).  And where the opinion is lacking in detail, “the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination.”  Acevedo, 25 Vet. App. at 294.  In short, the Board has considered the December 2018 private psychological medical opinion to be probative evidence in support of the PTSD claim, in light of its consistency with the above caselaw.

With regard to the favorable diagnosis of PTSD for the Veteran rendered by various VA psychiatrists, VA psychologists, and VA social workers in VA treatment records dated from 2016 to 2018, the Board is aware that pursuant to 38 C.F.R. § 4.125(a), if the diagnosis of a mental disorder does not conform to DSM-5 or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis.  However, mental health professionals are experts and are presumed to know the DSM-5 requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis.  As such, the Court has held that a PTSD diagnosis provided by a mental-health professional must be presumed to have been made in accordance with the applicable DSM-IV (or DSM-5) criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor, unless there is evidence to the contrary.  Cohen v. Brown, 10 Vet. App. 128, 140 (1997).

The DSM-IV (or DSM-5) cannot be used “as a basis for rejecting the Veteran’s favorable medical evidence as to the sufficiency of a stressor or the adequacy of the Veteran’s symptomatology.”  Id.  As such, in order to make a finding that the Veteran in this case did not have a valid PTSD diagnosis, the Board must clearly articulate its reasons for finding that the PTSD diagnosis was not made in accordance with the DSM-IV or DSM-5 requirements.  If the Board cannot support a conclusion that the diagnosis was not made in accordance with DSM-IV or DSM-5 requirements, it must accept the diagnosis as valid.  

In the present case, the Board will accept the above PTSD diagnoses rendered by the Veteran’s VA clinicians from 2016 to 2018 and other VA medical professionals of record as valid and in accordance with the DSM-5.  The VA psychologists, VA psychiatrists, VA social workers, and other VA mental health professionals of record described some of the reasons for their conclusions and also discussed the Veteran’s underlying PTSD symptomatology.  Nonetheless, the negative clinical evidence of record against service connection for PTSD also provides probative analysis as well.

As currently codified, VA law defines the “benefit of the doubt” doctrine as:

	When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.

38 U.S.C. § 5107(b).  See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   

In light of all the evidence discussed in detail above, the Board finds that there is an approximate balance of positive and negative evidence on the PTSD issue.  Certain elements of both the positive and negative medical opinions and VA mental health treatment records and buddy statements in this case in this case are probative.  Both sets of evidence have their respective strengths and weaknesses.  In such situations, the benefit of the doubt is resolved in the Veteran’s favor.  Given the law and the medical evidence of record, the Board is compelled to grant the Veteran the benefit of the doubt and award service connection for PTSD with major depression.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The claim is granted. 

In granting the PTSD claim, the Board has also considered whether the Veteran’s PTSD claim raised the issue of whether service connection is warranted for any other acquired psychiatric disorder in addition to PTSD.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record).  As such, the Board has also considered whether service connection is warranted for the Veteran’s major depressive disorder.  In light of the favorable nexus opinion for major depression submitted by the December 2018 private psychologist, service connection is also warranted for major depression.

In any event, the present decision is considered a full grant of the benefits sought by the Veteran for his acquired psychiatric disorder claim to include PTSD.  In granting service connection for PTSD with major depression, the AOJ should assign a disability rating or ratings that encompass the symptoms of these disorders.  See Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009) (two defined diagnoses constitute the same disability for purposes of 38 C.F.R. § 4.14 if they have overlapping symptomatology, but bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability).  

REASONS FOR REMAND

1. Entitlement to service connection for human immunodeficiency virus (HIV) is REMANDED.

2. Entitlement to specially adapted housing is REMANDED.

3. Entitlement to a special home adaptation grant is REMANDED.

4. Entitlement to a certificate of eligibility for an automobile and adaptive equipment, or for adaptive equipment only, is REMANDED.

First, for the HIV issue on appeal, a remand is required for the AOJ to secure an independent medical expert (IME) opinion under 38 U.S.C. § 5109 and 38 C.F.R. § 3.328 (2018).  The AOJ has the authority to obtain advisory medical opinions under 38 U.S.C. § 5109 in certain instances.  The issue under consideration (service connection for HIV) poses a medical problem of such obscurity or complexity and / or has generated such controversy in the medical community at large that an advisory opinion from an independent medical expert (IME) is required in the present case.  See again 38 U.S.C. § 5109; 38 C.F.R. § 3.328.  

In this regard, in the present case there are both favorable and unfavorable VA and private medical opinions of record.  Notably, both sets of VA and private medical opinions failed to discuss certain pertinent facts of record regarding the date of onset of the Veteran’s HIV and his risk factors.  For example, an earlier March 2017 VA HIV examination (DBQ) determined that the Veteran’s current HIV was “less likely than not” (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.  However, the VA examiner failed to discuss certain pertinent evidence of record – e.g., the Veteran’s laboratory results for HIV during service that tested negative, his frequent in-service complaints of gastrointestinal distress and upper respiratory infections, and the fact that the Board in the present decision has concluded that the Veteran is credible in his description of suffering 7-8 sexual assaults (unprotected sex) in-service from 1989 to 1990 while stationed with the Air Force in Iceland.  

When VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Court has held that a medical examiner’s conclusions were of “questionable probative value” when the examiner failed to consider certain relevant information.  Mariano v. Principi, 17, Vet. App. 305, 312 (2003).  The focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was “informed of the relevant facts” and medical history in rendering a medical opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Accordingly, due to the complex and conflicting and inaccurate VA and private medical opinions of record, on remand, the AOJ must follow its established procedures for requesting an advisory IME opinion on the HIV issue, furnished by a medical school, university, or clinic.

Second, since several issues on appeal are already being remanded for further development, the Board sees the Veteran’s VA treatment records on file from the Indianapolis VA healthcare system and Northern Indiana VA healthcare system (both Ft. Wayne and Marion) date to April 2018.  If the Veteran has had any additional treatment at the VA, these records should be obtained.  

Third, the automobile / adaptive equipment, specially adapted housing, and special home adaptation grant claims on appeal for loss of use of both feet / lower extremities are inextricably intertwined with the service connection for HIV claim on appeal.  That is, if the service connection for HIV claim is granted by the AOJ, this may directly impact the adjudication of these claims.  See 38 C.F.R. §§ 3.808, 3.809, 3.809a (2019).  For this reason, the issue of service connection for HIV being remanded in the present case must be resolved prior to resolution of the claims for automobile / adaptive equipment, specially adapted housing, and a special home adaptation grant.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation).  Accordingly, a remand is required for the AOJ to adjudicate the inextricably intertwined service connection and automobile / adaptive equipment, specially adapted housing, and special home adaptation grant claims.  

Therefore, these particular issues are REMANDED for the following action:

1. The AOJ should obtain the Veteran’s VA treatment records from the Indianapolis VA healthcare system and Northern Indiana VA healthcare system (both Ft. Wayne and Marion) dated from April 2018 to the present and associate them with the claims file.  

2. After completion of step 1, the AOJ should secure an independent medical expert (IME) opinion under 38 U.S.C. § 5109 and 38 C.F.R. § 3.328, for the issue of service connection for HIV.  That is, the HIV issue under consideration poses a medical problem of such obscurity or complexity and / or has generated such controversy in the medical community at large that an advisory opinion from an independent medical expert (IME) is required in the present case.  The AOJ must follow its established procedures for requesting an advisory IME opinion on the HIV issue, furnished by a medical school, university, or clinic.  The entire claims file should be made available to and be reviewed by the IME examiner, and it should be confirmed that such records were available for review.  An explanation for all opinions expressed must be provided.	

THE IME EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRY:

Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran contracted HIV as the result of his exposure to 7-8 sexual assaults involving unprotected sex during active duty while stationed with the Air Force in Iceland in 1989 and 1990?  In answering this particular question, the IME examiner is advised that the Board is accepting (conceding as fact) that the Veteran endured 7-8 sexual assaults involving unprotected sex during active duty in 1989 and 1990. The IME examiner should assume for purposes of this medical opinion that the Veteran is credible for this particular allegation.  The IME examiner should discuss the significance, if any, of the Veteran’s documented in-service complaints of gastrointestinal distress and upper respiratory infections in 1989 and 1990.  The IME examiner should also discuss any in-service or post-service risk factors for HIV. 

In rendering the above opinion, the IME examiner should consider the following evidence:

•	Service treatment records (STRs) dated from 1987 to 1992 are negative for any diagnosis of HIV.  Service personnel records (SPRs) confirm the Veteran served in Iceland at various times in 1989 and 1990.  However, an October 1991 STR clinical record provided that after the Veteran’s blood was drawn, his HIV test was “negative.”  A November 1991 STR laboratory report indicated that an HIV ELISA screen was “negative.”

•	With regard to in-service respiratory symptoms, a March 1989 STR documented sore throat, cough, and nasal drainage x 7-8 days.  The diagnosis was an upper respiratory infection.  A May 1990 STR dental patient medical history noted cold and flu treatment for the past year, but with no current problems.  A June 1990 STR reported ear pain, congestion, and sore throat x 1 month.  His nose was congested.  The diagnosis was a viral upper respiratory infection.  He was given medicine.  A September 1990 STR revealed plugged ears, pain, pressure, and sore throat x 1 week.  He underwent a throat culture.  The Veteran reported sore throat and coughing, especially in the morning.  He had herpes on his lips.  The assessment was eustachian tube dysfunction and sore throat.  A November 1990 STR showed sinus drainage.  The Veteran had laryngitis x 10 days.  He exhibited congestion, cough, scratchy throat, no fever, but yes to being a smoker.  The assessment was a “prolonged” upper respiratory infection in a smoker.  The Veteran was advised to stop smoking, and to take amoxycillin, Motrin, and fluids.   

•	With regard to in-service gastrointestinal distress, STRs and laboratory testing dated in February 1990 documented “persistent” diarrhea and vomiting.  He reported his stomach symptoms began in January 1990.  The diagnosis was gastrointestinal upset of unknown etiology.  He was given Kaopectate.  A March 1990 STR consultation sheet reflected the Veteran had “recurrent” episodes of abdominal discomfort and vomiting after meals.  Another March 1990 STR indicated the Veteran experiences diarrhea and vomiting.  He was advised to take Gaviscon four times a day and track his meals.  A March 1990 STR laboratory testing report was normal for the stomach.  An April 1990 STR noted that upper GI exam in Iceland 3 weeks earlier came back normal.  A May 1990 STR mentioned diarrhea, nausea, vomiting, stomach pains, and the shaking of hands x 2 weeks. 

•	Service personnel records confirm the Veteran was discharged from active duty in June 1992.   

•	Post-service, a December 1994 VA hospitalization report mentioned the Veteran was diagnosed with HIV in December 1994, one-week before this admission.  He had no previous history of STDs.  He reported diarrhea.  He showed a CD 4 count of over 400.

•	Post-service, in a December 1994 VA progress note (handwritten), the Veteran had a history of chronic loose stools x 6 months.  He had a recent diagnosis of HIV one week earlier.  Significantly, the Veteran reported that his lover had also turned HIV positive.  The Veteran reported to the VA clinician that the last HIV test for both of them was six months earlier (June 1994), at which time they were both negative.  It was noted that both the Veteran and his lover had “unsafe” anal sex.

•	Post-service, in a January 9, 1995 VA progress note, the Veteran stated he tested positive for HIV in December 1994.  A March 1995 VA progress note reflected the Veteran was HIV positive, which was described as a “recent infection.”  In a March 1995 Application for Compensation (VA Form 21-526), the Veteran wrote that his HIV infection began in October 1994.  In a February 1996 Veteran statement, he said he was diagnosed with HIV in November 1994, which is 2.5 years after separation from service.  VA treatment records dated from 1995 to 1999 document treatment for HIV, fatigue, upper respiratory infections, and stomach upset. 

•	Post-service, a September 1999 VA infectious disease consult discussed the Veteran’s risk factors for his HIV positive diagnosis: significant for male-to-male sex, but negative for prostitutes, male-to-female sex, transfusions, employment as a healthcare worker, or IV drug use.  The impression was HIV infection, on triple therapy with undetectable HIV RNA and high CD4.2; pars planitis; and “persistent” diarrhea.

•	Post-service, at times in various statements and treatment records, the Veteran has reported testing positive for HIV during active duty in 1991 or 1992.  See October 2000 VA VIST note; October 2000 SSA disability examination; February 2017 Veteran statement.  But on most other occasions however, in both lay statements and in VA treatment records, he stated that he first tested positive for HIV post-service in 1994.  See e.g., February 2002 Veteran letter.  In a November 2016 statement, the Veteran described always using protection during sex.  He believes that his flu-like symptoms and gastrointestinal distress during active duty in 1989 and 1990 was evidence of the onset of his HIV at that time due to the 7-8 sexual assaults he endured during that timeframe. 

•	Post-service, with regard to a nexus, a March 2017 VA HIV examination (DBQ) assessed that the Veteran’s current HIV was “less likely than not” (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness.  However, a July 9, 2017 VA medical opinion from the Chief of Medicine at the Indianapolis VAMC opined that the Veteran’s HIV was due to active service.  This VA physician explained that shortly after the in-service sexual trauma (3-6 months) the Veteran developed flu-like symptoms that could have been acute retroviral syndrome.  The Veteran has “valid concerns” his military sexual trauma led to acquisition of his HIV.  Finally, in a December 2018 private psychological opinion, a psychologist found that after the Veteran suffered military sexual trauma while serving in Iceland, he tested positive for HIV.  

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P.S. Rubin, 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.