Citation Nr: 20004872 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 11-04 462 DATE: January 23, 2020 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran is not shown to have a hearing disability for VA compensation purposes. 2. Tinnitus manifested more than one year after separation and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.303, 3.385 (2018). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served during the Vietnam era and Peacetime on active duty from August 1969 to October 1973 and from September 1975 to April 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2009 and February 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2014 and September 2017, the Board remanded the appeal to the RO for additional development. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in November 2019. A transcript of the hearing has been associated with the Veteran’s electronic claims file. The appeal has been returned to the Board for further consideration. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Post-service development of an "organic disease of the nervous system" to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. An "organic disease of the nervous system", to include bilateral hearing loss and tinnitus, is subject to presumptive service connection under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258 (2015). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran seeking service connection must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition where the condition is simple, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Before service connection may be granted for a hearing loss, that loss must be of a particular level of severity. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability for VA compensation purposes only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Factual Background The Veteran was afforded a VA examination in May 2009. The audiometry results, in decibels, read: HERTZ 1000 2000 3000 4000 RIGHT 20 15 25 25 LEFT 20 15 25 20 The Veteran’s speech discrimination scores were 96 percent for the right ear and 94 percent in the left ear. The Veteran reported military service as a boatswain’s mate and engineman and post-military employment as a millwright and truck driver. The Veteran reported in-service onset of tinnitus and current persistent tinnitus. The Veteran reported effects of tinnitus as “cannot sleep in a totally quiet environment”. The examiner noted that tinnitus is a subjective complaint with no objective means of documenting its presence or absence. The Veteran reported progressive hearing loss in both ears. Regarding hearing loss, the examiner determined that the Veteran has normal hearing in both ears based on audiometric testing and that there is no measurable hearing loss. After review of the Veteran’s file, to include service medical records, the VA examiner provided an addendum opinion in September 2010. The examiner opined that it was less likely than not that the Veteran’s tinnitus is related to his military service. The examiner noted that the Veteran presented with normal hearing bilaterally at the May 2009 examination and that the Veteran’s separation physical was silent for complaints of hearing loss or tinnitus. In particular, the examiner noted that the Veteran’s separation physical included detailed information about multiple claimed health conditions, to include detailed documentation of an eye injury, with no complaints of hearing loss or tinnitus. The examiner also noted that the Veteran worked for many years as a millwright/industrial mechanic and drove trucks for eight years. Given the absence of evidence of in-service complaints or treatment and the evidence of post-military employment-related noise exposure, the examiner determined that the Veteran’s tinnitus is not related to military noise exposure. The examiner re-iterated his finding of normal hearing and no evidence of in-service hearing loss from the May 2009 examination. The Veteran was afforded a Board hearing in November 2019. The Veteran testified that during service he was bunked “along the inside of the gun mount” of a Navy ship with no hearing protection. The Veteran testified that he experienced and inquired about ringing in the ears multiple times during service and that he has experienced ringing in the ears continuously to the present. The Veteran testified to having “superb hearing” prior to service and that he cannot pinpoint when he began to have trouble hearing. The Veteran’s spouse testified that the Veteran does not always understand what she is saying even in quiet environments. The Veteran testified that he is not receiving treatment for hearing difficulties and has not been issued hearing aids. 1. Entitlement to service connection for a bilateral hearing loss disability. The Veteran asserts that he developed bilateral hearing loss as a result of his military service. Under the standards established by 38 C.F.R. § 3.385, there is no indication of a current bilateral ear hearing loss “disability” in this case. The results of the May 2009 VA audiometric evaluation do not establish that a hearing disability is present. Upon audiometric evaluation, the Veteran had a decibel threshold in the left ear of 20, 15, 25, 20, at 1000, 2000, 3000, and 4000 Hertz, respectively with speech recognition ability of 94 percent. In the right ear, he had a decibel threshold of 20, 15, 25, and 25 at 1000, 2000, 3000, and 4000 Hertz, respectively with speech recognition of 96 percent. These findings do not meet the criteria of 38 C.F.R. § 3.385 for service connection for bilateral hearing loss. Section 3.385 prohibits a finding of a hearing disability when the requisite hearing status is not met. Hensley v. Brown, 5 Vet. App. 155, 157-164 (1993). Thus, the Veteran’s claimed hearing loss does not constitute a “presently existing disability,” for which service connection may be granted. See Degmetich v. Brown, 104 F.3d 1328, 1332, (Fed. Cir. 1997) (upholding the Secretary’s interpretation of 38 U.S.C. § 1131 to require a presently existing disability, and concluding that such a requirement comports with the other provisions of the statute as a whole). Accordingly, the Veteran’s claim of entitlement to service connection for bilateral hearing loss must be denied. 2. Entitlement to service connection for tinnitus As explained above, the Veteran did not have any hearing loss during service, or shortly thereafter. With regard to his tinnitus, a current disability has been established as the May 2009 VA examiner diagnosed him with such. However, his service treatment records are devoid of any complaints of tinnitus, as are his treatment records following service. The Veteran did not file for service connection for tinnitus until September 2008, nearly 30 years after his separation from service. Moreover, the September 2010 VA addendum report opined that the Veteran's tinnitus is less likely than not related to service. The VA examiner found no medically sound basis for attributing the Veteran’s claimed ringing in the ears to an in-service noise injury. The Board finds this opinion to be well reasoned and entitled to significant weight. Therefore, entitlement to service connection for tinnitus on a direct basis is denied. Although tinnitus is considered a “chronic disease” for presumptive service connection purposes when there is evidence of acoustic trauma (see Fountain v. McDonald, 27 Vet. App. 258 (2015)), the VA examiner essentially found that there was no trauma in service because the noise exposure did not result in hearing loss. Tinnitus was not clinically shown to a compensable degree within one year following the Veteran’s discharge from service. Also, there is no persuasive lay evidence that tinnitus manifested to a compensable degree within one year following the Veteran’s discharge from service, or that tinnitus was noted in service and continued ever since service. The Veteran did not report any chronic hearing difficulties on his in-service reports of medical history. The Board finds the evidence contemporaneous to the Veteran’s service more probative than recollections made decades after the fact due to its proximity to service. His treatment records since separation are silent for complaints of tinnitus. Therefore, service connection for tinnitus is not warranted on a presumptive or continuity of symptomatology basis. 38 C.F.R. §§ 3.307, 3.309. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. The Veteran was afforded a PTSD VA examination in January 2012. The Veteran reported serving in Vietnam as an “engine man”, refurbishing boats. The examiner noted that the Veteran was reluctant to discuss specific in-service traumatic events, but eventually reported going into villages of the Perfume River, engaging in fire fights, and witnessing the aftermath of those fire fights. The Veteran reported general stressors of discharging his weapon, being involved in sniper fire and mortar attacks, and witnessing others being killed or injured. The Veteran was diagnosed with alcohol dependence, substance induced mood disorder, and anxiety disorder, not otherwise specified (NOS). The Veteran was not diagnosed with PTSD, as the examiner opined that the Veteran’s response to in-service events do not indicate that he experienced trauma, that the Veteran reports distress when looking back at those events, but that the Veteran’s reported PTSD-related symptoms do not support a diagnosis of PTSD. The examiner opined that the Veteran’s alcohol dependence and mood disorder are not related to service and were evident prior to military service. In a January 2012 memorandum, VA made a formal finding that information required to verify the Veteran’s claimed stressors had not been received. In a May 2017 statement, the Veteran supplied additional information regarding the claimed in-service stressor. The Veteran reported participation in Operation ACTOV at Camp Tein-Sha, Lighterage Division, NSA Da Nang from May 1970 to May 1971. The Veteran reported events of red alerts, sniper fire, rocket and mortar attacks, and in-camp booby traps and improvised explosive devices (IEDs). At the November 2019 Board hearing, the Veteran testified that he had no history of a psychiatric disability prior to service. The Veteran testified that he was not told that he had a psychiatric disorder during service. The Veteran testified that while serving in Vietnam he had contact with enemy forces three to four times per week, that he experienced sniper fire, rockets and mortars, swimmers in the harbor, and was on constant red alert. The Veteran testified that his medical records say that he is "hyperaware". The Veteran testified that he underwent mental health treatment at VA and was diagnosed with PTSD. The Veteran testified to a history of alcohol use to self-medicate and that he drinks because he is unable to function on anti-depressants. VA medical records include positive and negative screenings for PTSD and a diagnosis of chronic PTSD. The medical records also include diagnoses of alcohol dependence, substance induced mood disorder, anxiety disorder, substance use disorder, and Ambien abuse. The Veteran’s representative has requested a new PTSD VA examination and asserts that the Veteran’s acquired psychiatric disorder began during military service, eventually leading to alcohol abuse, and that evidence added to the Veteran’s file since the January 2012 medical opinion should be considered. See November 2019 Hearing Transcript. Importantly, the Veteran’s service records indicate that he was recognized for exemplary service during recruit training, and was later diagnosed with alcoholism, habitual excessive drinking, and mixed character pathology with predominance of passive aggressive traits and recommended for administrative discharge. See October 1969 Commendation Letter; STRs. STRs indicate that no mental defects were found. The Board finds that further development is warranted. The Veteran has provided additional details regarding the claimed in-service stressor. The RO should attempt to verify the claimed stressor. Once this development is completed, the Veteran should be afforded a new VA examination to address the Veteran’s assertion that his in-service diagnosis of alcoholism is a symptom of acquired psychiatric disability which began in service. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Contact any appropriate entities and provide details of the Veteran’s reported stressor of participation in Operation ACTOV at Camp Tein-Sha, Lighterage Division, NSA Da Nang. A request should be made to cover the period from May 1970 to May 1971 (or multiple requests to cover the period). Any evidence obtained should be associated with the Veteran’s file. 3. After the above development is completed, schedule the Veteran for a PTSD VA examination. The claims file, to include a copy of this remand, must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. All tests and studies deemed necessary should be conducted. The examiner should determine the nature and etiology of any acquired psychiatric condition, including PTSD. (a.) The examiner should identify all acquired psychiatric conditions experienced by the Veteran. (b.) For each identified acquired psychiatric condition, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease, including the diagnosis of mixed character pathology with predominance of passive aggressive traits documented in STRs. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Bynum, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.