Citation Nr: 20071925 Decision Date: 11/06/20 Archive Date: 11/06/20 DOCKET NO. 20-12 052 DATE: November 6, 2020 ORDER Service connection for other specified trauma and stressor-related disorder, is granted. Service connection for sleep apnea is denied. An initial compensable rating for bilateral hearing loss is denied. An initial rating greater than 10 percent for tinnitus is denied. An effective date earlier than January 17, 2018, for service connection for bilateral hearing loss is denied. An effective date earlier than January 17, 2018, for service connection for tinnitus loss is denied. FINDINGS OF FACT 1. The Veteran has other specified trauma and stressor-related disorder as a result of service. 2. The Veteran does not have any current sleep apnea, and no sleep-related disability is related to service. 3. The Veteran’s bilateral hearing loss has been, at worst, Level I in the right ear and Level IV in the left ear. 4. The Veteran receives the maximum 10 percent rating for tinnitus. 5. Service connection for tinnitus was denied in a final February 2015 rating decision; no claim for service connection for either tinnitus or hearing loss was subsequently filed until January 17, 2018. CONCLUSIONS OF LAW 1. The criteria for service connection for other specified trauma and stressor-related disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 4. There is no legal basis for an initial rating in excess of 10 percent for tinnitus. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260. 5. The criteria for an effective date earlier than January 17, 2018, for service connection for bilateral hearing loss are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 6. The criteria for an effective date earlier than January 17, 2018, for service connection for tinnitus are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to March 1970. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office. In February 2015, the Board denied service connection for posttraumatic stress disorder (PTSD), and that decision became final. See 38 U.S.C. § 7104(b). The Veteran filed a claim to reopen the previously denied PTSD claim in November 2016. However, given the Veteran’s description of his claim for PTSD and the information of record, the claim includes any acquired psychiatric disorder that encompasses his psychiatric symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Moreover, as discussed below, such symptoms are encompassed in his diagnosed other specified trauma and stressor-related disorder. However, as this diagnosis is a different diagnosis than PTSD—and the Board is granting service connection for other specified trauma and stressor-related disorder—the Board will adjudicate the matter as a new claim, rather than as a claim to reopen a previously denied claim. See Boggs v. Peake, 520 F.3d 1330, 1335-37 (Fed. Cir. 2008) (holding that, if there is a final agency decision denying a claim based on a particular diagnosis, and subsequently a new and different diagnosis is submitted for VA’s consideration, the second diagnosis must be considered factually distinct from the first and must be considered to relate to a separate claim). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity”’ means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Service connection for other specified trauma and stressor-related disorder is granted. The Veteran has claimed service connection for PTSD based on an in-service stressor or stressors he incurred during his wartime service as a heavy equipment operator in Vietnam from 1966 to 1967. He is currently service connected for major depressive disorder, as secondary by aggravation to type II diabetes mellitus, rated 20 percent. VA treatment records reflect treatment for psychiatric problems variously diagnosed as anxiety disorder, PTSD, major depressive disorder, and subthreshold PTSD, chronic, military related. The Veteran was given a VA examination in connection with his claim in May 2017. At that time, the Veteran described in-service stressors, and specifically witnessing the death of a woman during his service in Vietnam. The examiner noted that the stressor met the diagnostic criteria for a stressor adequate to support a diagnosis of PTSD, and that the stressor was related to the Veteran's fear of hostile military or terrorist activity. However, the examiner assessed that the Veteran did not meet full diagnostic criteria for PTSD. It was explained that while he exhibited psychological distress when describing his in-service stressor, avoided talking about it, stated he had nightmares about it and recurrent thoughts, and described symptoms of re-experiencing and avoidance, he did not describe changes in mood, changes in cognition, or clinically significant symptoms of increased arousal. The examiner noted that this was consistent with his current mental health care provider who has diagnosed him with subthreshold PTSD. However, he did have some symptoms of PTSD, which warranted the diagnosis of other specified trauma and stressor-related disorder. The examiner expressed the following opinion: “The Veteran's Other Specified Trauma and Stressor-Related Disorder (which is basically a variant of PTSD and should be considered such for purposes of service-connection) is CAUSED BY the traumatic event of seeing a Vietnamese woman blown up while on active duty.” The examiner based this opinion on a review of the record and examination of the Veteran, concluding that “[t]he Veteran has symptoms of re-experiencing and avoidance that are directly related to the event described above.” The agency of original jurisdiction (AOJ), in denying the Veteran’s claim in a January 2020 statement of the case, noted the Veteran’s “current treatment for a trauma disorder/trauma-related disorder” and the May 2017 VA examiner’s “diagnosis of other specified trauma and stressor-related disorder”; that his “symptoms did not meet the criteria for a diagnosis of PTSD”; that he “again reported a stressor of seeing a Vietnamese woman blow herself up”; and that “[t]he VA examiner related your current trauma disorder to the reported in-service stressor and also indicated that this stressor was related to a fear of hostile military or terrorist activity.” The AOJ continued: “Although VA regulations allow for a relaxed evidentiary standard when a veteran is diagnosed with PTSD related to a stressor involving a fear of hostile military or terrorist activity (38 C.F.R. § 3.304(d)(3)),we cannot review your claim under this relaxed evidentiary standard since you are not diagnosed with PTSD. We must have sufficient evidence to corroborate the in-service stressor.” The AOJ therefore acknowledged the Veteran’s current diagnosis of other specified trauma and stressor-related disorder, that the VA examiner had related this current diagnosis to the Veteran’s reported in-service stressor, and that the stressor involved a fear of hostile military or terrorist activity consistent with the places, types, and circumstances of the Veteran’s service; but found that the stressor could not be conceded pursuant to 38 C.F.R. § 3.304(f)(3), because the Veteran had not been diagnosed with PTSD. It therefore denied the Veteran’s claim due to the absence of credible supporting evidence that the claimed in-service stressor occurred—based on his current stressor-related diagnosis. Although the provisions of 38 C.F.R. § 3.304(f) technically apply to claims of service connection for PTSD, 38 C.F.R. § 3.304(f)(3) does not specifically require a diagnosis of PTSD for the in-service stressor provisions to apply—only that a stressor claimed by a Veteran is related to the Veteran’s fear of hostile military or terrorist activity consistent with the places, types, and circumstances of the Veteran’s service and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor, all of which have been established in this case. The difference between PTSD and the Veteran’s diagnosed other specified trauma and stressor-related disorder is the absence of a few current symptoms, specifically changes in mood, changes in cognition, or clinically significant symptoms of increased arousal. This distinction in no way speaks to the credibility of the Veteran’s in-service stressor related to fear of hostile military or terrorist activity, or whether the stressor actually occurred; the only difference is in what symptoms currently manifest as a result. To reiterate, the VA examiner explicitly gave an opinion in support of service connection in his case, expressing that “[t]he Veteran's Other Specified Trauma and Stressor-Related Disorder (which is basically a variant of PTSD and should be considered such for purposes of service-connection) is CAUSED BY the traumatic event of seeing a Vietnamese woman blown up while on active duty.” Considering the above, the Board finds that the Veteran’s lay testimony is sufficient to establish the occurrence of his in-service stressor, pursuant to 38 C.F.R. § 3.304(f)(3). Considering this, his current diagnosis of other specified trauma and stressor-related disorder, and the May 2018 VA opinion linking the current disorder to the in-service stressor, and resolving reasonable doubt in the Veteran’s favor, the Board finds that he has other specified trauma and stressor-related disorder as a result of his claimed in-service stressor. Accordingly, service connection for other specified trauma and stressor-related disorder must be granted. 2. Service connection for sleep apnea is denied. The Veteran filed a service connection claim for “sleep apnea” in January 2018. However, the record does not reflect that he has sleep apnea or any related disability that may be associated with service. Service treatment records reflect no findings or complaints related to sleep apnea, and, on October 1969 examination for separation from service, the Veteran denied a history of frequent trouble sleeping. VA treatment records beginning in June 2017, more than 45 years after service, reflect that the Veteran was noted to have had no history of obstructive sleep apnea, but to snore and often be tired during the day. In September 2018, he reported that his wife had been watching him and told him that he needed to see someone for sleep apnea; at that time, he reported snoring, daytime tiredness, and his wife telling him he had apnea while sleeping. He underwent a sleep study in October 2018, which showed moderate degree of periodic leg movement with scattered apneas and hypopneas, but the frequency of the disordered respiratory events did not meet the criteria for a diagnosis of obstructive sleep apnea. April 2019 records continue to note that the Veteran had no history of obstructive sleep apnea, and there is no further evidence of any diagnosis of a sleep apnea disorder. The record therefore reflects that the Veteran did not have a sleep apnea disorder at the time of his January 2018 claim for benefits and has not had one at any time since. Therefore, there can be no valid service connection claim for such disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Moreover, there is no indication of sleep apnea-related problems in service, or evidence linking any current sleep-related problems to the Veteran’s service more than 45 years prior in any way, or any explanation put forth as to what any such nexus might be. Therefore, the weight of the evidence is against a finding that the Veteran has any current sleep apnea disorder, or that any sleep-related disability is related to service in any way. Accordingly, service connection for sleep apnea must be denied, and the claim warrants no further development. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. 3. An initial compensable rating for bilateral hearing loss is denied. Ratings of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. To rate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. Specific provisions are in effect for “unusual patterns of hearing impairment,” specifically cases where the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more, or where the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. As neither fact pattern has been shown in this case, these provisions are inapplicable here. A February 2018 VA examination reveals Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 40 50 70 48 96 LEFT 30 45 55 65 49 72 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level IV. Entering these resulting bilateral numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable (0 percent) rating under DC 6100. Based on these results, an initial compensable rating for the Veteran’s bilateral hearing loss is not warranted. In evaluating this claim, it is noted that the assignment of disability ratings for hearing impairment is derived from a mechanical formula. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, the mechanical application does not yield a compensable disability rating for the Veteran's level of hearing loss at any time during the appeals period. There are no audiological testing results or other evidence showing the Veteran’s hearing loss to be worse than it was on February 2018 examination, and Veteran has not identified any. Accordingly, an initial compensable rating for bilateral hearing loss must be denied. 4. An initial rating greater than 10 percent for tinnitus is denied. The maximum schedular rating available for tinnitus is 10 percent. 38 C.F.R. § 4.87, DC 6260; see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). There is therefore no legal basis on which to award a higher schedular rating than 10 percent for bilateral tinnitus. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veteran has not identified any other basis on which a higher rating than 10 percent for his tinnitus is warranted. Accordingly, an initial rating in excess of 10 percent for tinnitus must be denied. Earlier Effective Dates The effective date of an award of service connection for a disability may not be earlier than the date of receipt of claim unless the claim is received within one year of separation from service; if a claim—whether an original claim or one reopened after final disallowance—is more than one year after service, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 4. An effective date earlier than January 17, 2018, for service connection for bilateral hearing loss is denied. 5. An effective date earlier than January 17, 2018, for service connection for tinnitus is denied. The AOJ previously denied service connection for tinnitus in a February 2015 rating decision. This decision was not appealed, and no new evidence pertinent to the claim was received by VA within one year from the date that the AOJ mailed notice of the decision to the Veteran. Furthermore, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of that decision. Therefore, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2015). Subsequently, on January 17, 2018, the Veteran filed another claim for service connection for tinnitus. Based on this claim, and a subsequent February 2018 VA examination in connection with the claim, the AOJ granted service connection for bilateral hearing loss and tinnitus in a February 2018 rating decision. In so doing, the AOJ assigned an effective date of January 17, 2018, for both disabilities, based on the date of the Veteran’s claim to reopen. The Veteran appealed the assigned effective dates. There is no indication in the record that a claim for service connection for either tinnitus or hearing loss was filed after the date of the final February 2015 rating decision, but prior to January 17, 2018, and the Veteran has not identified any. Again, while the Veteran previously filed a claim for tinnitus in March 2014, the claim was denied in a February 2015 final rating decision. For such claims—where a service connection claim is denied and the decision becomes final, and is then reopened based on new and material evidence and service connection is granted—the effective date of service connection is no earlier than the date of the claim to reopen. 38 C.F.R. § 3.400(q)(2), (r). The Veteran in this case, moreover, has not collaterally attacked, or challenged the finality of, the February 2015 rating decision denying service connection for tinnitus such as filing a claim to revise or vacate the decision due to clear and unmistakable error (see 38 C.F.R. § 3.105), or arguing that new and material evidence in connection with the denied claim had been submitted within the 1-year appeal period of the February 2015 decision (see 38 C.F.R. § 3.156(b)) or that relevant service department records have been added to the record since that decision (see 38 C.F.R. § 3.156(c)). Indeed, the Veteran has not suggested any basis for an earlier effective date for service connection for hearing loss or tinnitus. Accordingly, an effective date earlier than January 17, 2018, for service connection for bilateral hearing loss and tinnitus must be denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, 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.