Citation Nr: 20021729 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 15-29 861 DATE: March 26, 2020 ORDER Service connection for posttraumatic stress disorder (PTSD) and major depressive disorder is granted. Service connection for bilateral hearing loss disability is denied. REMANDED The appeals for service connection for diabetes mellitus and right and left upper and lower extremity peripheral neuropathy are remanded. FINDINGS OF FACT 1. Resolving any doubt in his favor, the Veteran developed PTSD as a result of fear that hostile enemy activity would occur (and of its consequences), while he was stationed near the demilitarized zone in Korea from June 1972 to July 1973; the fear he had in Korea is sufficient to support a diagnosis of PTSD, and his depression from PTSD has become so severe as to warrant its own diagnosis of major depressive disorder. 2. The preponderance of the evidence is against a finding that the Veteran’s current bilateral sensorineural hearing loss disability was manifest in service or to a degree of 10 percent within 1 year of separation or is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD and major depressive disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.304(f)(3), 38 C.F.R. § 3.310. 2. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to September 1974, with service in Korea from June 1972 to July 1973. He presented testimony during a videoconference hearing held before the undersigned Veterans Law Judge in September 2018. At that time, the record was held open for 60 days, and then the issues were remanded to the agency of original jurisdiction for development in September 2018. The Board thanks the Veteran for his service. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Organic disease of the nervous system, including bilateral hearing loss, is considered to be a chronic disease under 38 C.F.R. § 3.309. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was “noted” during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496–97(1997)); see 38 C.F.R. § 3.303(b). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. 1. Service connection for a psychiatric disorder Based on the evidence, the Board concludes that service connection is warranted for the Veteran's current psychiatric disorders, which are PTSD and major depressive disorder according to the August 2019 VA psychiatric examination reports. The evidence including particularly the August 2019 VA psychiatric examination reports is at least in equipoise that the Veteran developed PTSD as a result of fear that hostile enemy activity would occur, and of its consequences, while he was stationed in Korea from June 1972 to July 1973. The fear he had in Korea is sufficient to support a diagnosis of PTSD, as attested to by the VA examiner. The examiner also noted that his depression from PTSD has become so severe as to warrant its own diagnosis of major depressive disorder. Further, the examiner stated it was not possible to differentiate symptoms between the two diagnoses. Thus, the evidence is at least in equipoise that he has PTSD which is due to his fear of hostile enemy activity in service, and that his major depressive disorder is proximately due to his service connected PTSD. The criteria in 38 C.F.R. §§ 3.304(f)(3) and 3.310(a) for grants of service connection for PTSD and major depressive disorder, respectively, are met. 2. Service connection for bilateral hearing loss disability Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current bilateral hearing loss disability. The Veteran's June 2019 VA examination report evidences a bilateral hearing loss disability for VA benefits purposes. The preponderance of the evidence is against a finding that disabling hearing loss was manifest in service or to a degree of 10 percent within 1 year of separation, that the Veteran has experienced symptoms continuously since service, or that it is related to service. Hearing loss disability was first claimed in July 2010, many years after service, when the Veteran reported exposure to loud diesel engines as a truck driver in Korea. He has also reported a lack of hearing protection during service when he fired rifles, guns and missiles. The 2019 VA examiner acknowledged noise exposure in service, as does the Board. The first clinical indication of the Veteran's current bilateral sensorineural hearing loss disability in the record is the VA examination in January 2019. The Veteran is not competent to opine on the etiology of hearing loss as it is a complex medical matter, and he is a layperson who lacks the requisite training. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The only competent and probative opinion of record on the matter is from the VA examiner in June 2019, who opined that the Veteran's current bilateral hearing loss disability is less likely than not due to his military noise exposure. The examiner noted that there were no threshold shifts noted between the induction and separation audiometric examinations in service, even with consideration of the fact that the Veteran is service connected for tinnitus and had noise exposure due to his military work as a motor transport operator. As the preponderance of the evidence is against a finding of disabling hearing loss in service, manifestations of hearing loss within the first post-service year, continuity of symptomatology, or a competent opinion linking the current hearing loss disability to service, the claim must be denied. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). REASONS FOR REMAND As reported above, the issues of service connection for diabetes mellitus and peripheral neuropathy are being remanded. The Veteran is essentially asserting, including in March 2013, that his diabetes mellitus is due to in service Agent Orange exposure, and that his peripheral neuropathy is secondary to his diabetes mellitus. His service personnel records show that the Veteran served in Korea from June 19, 1972 to July 10, 1973 while assigned to BtryA8/61Arty2dInfDiv. Since he did not serve in or near the demilitarized zone between April 1, 1968 and August 31, 1971, he is not presumed to have been exposed to herbicides while there. 38 C.F.R. § 3.307(a)(6)(iv). Instead, actual herbicide exposure must be demonstrated. In September 2018, the Board remanded this appeal, advising the agency of original jurisdiction (AOJ) to contact the Joint Services Records Research Center (JSRRC). The AOJ was to send a description of the Veteran's accounts of his service and exposure to herbicides in Korea, together with his service information from the service department; and the JSRRC was to indicate, if possible, the likelihood that the Veteran was exposed to tactical herbicides such as Agent Orange while he was in Korea between June 19, 1972 and July 10, 1973. The JSRRC’s September 2019 response indicated it searched only the 1972 – 1973 chronologies submitted by the 2nd Infantry Division and the 8th U.S. Army; the Operational Report – Lessons Learned (OR-LL) submitted by the 2nd Inf Div covering the period August – October 1972. Further, the response noted that those records and 1972 Army Station List did not mention the 2nd Battalion, 62nd Artillery, a unit which the Veteran was not a member of. Accordingly, this matter is being remanded. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, in a January 2020 written presentation, his representative noted “studies have shown” injury leading to the development of peripheral neuropathy in motor transport operators. The representative should be advised to provide a copy of the referenced studies. The matters are REMANDED for the following action: 1. Please obtain for the record updated VA and non-VA treatment records. 2. Please request the Veteran’s representative provide a copy for the record of the studies showing a connection between peripheral neuropathy and work as a motor transport operator. 3. Please contact the Joint Services Records Research Center (JSRRC) which should be requested to indicate, if possible, the likelihood that the Veteran was exposed to tactical herbicides such as Agent Orange while he was in Korea between June 1972 and July 1973 with BtryA8/61Arty2dInfDiv. 4. Please obtain a medical opinion which addresses whether the Veteran’s peripheral neuropathy is at least as likely as not (50% or greater probability) related to service, to include his work as a motor transport operator. The opinion provider should address the statement by (and any evidence supporting) the Veteran’s representative reporting that studies show work as a   motor transport operator (the Veteran’s MOS in service) leads to the development of peripheral neuropathy. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.