Citation Nr: 20033167 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 16-49 978 DATE: May 12, 2020 ORDER Entitlement to service connection for a hearing loss disorder is denied. Entitlement to service connection for tinnitus is denied. REMANDED A claim of entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. A preponderance of the probative evidence indicates that the appellant did not incur a hearing loss disorder during service. 2. A preponderance of the probative evidence indicates that the appellant did not incur tinnitus during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a hearing loss disorder have not been met. 38 U.S.C. §§ 101(24), 1131; 38 C.F.R. §§ 3.6(a), 3.303, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 101(24), 1131; 38 C.F.R. §§ 3.6(a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had active duty for training (ACDUTRA) from September 1977 to February 1978. He received a bad conduct discharge for a period of service between July 1979 and July 1982. The latter period of service may not form the basis of an award of service connection. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2014 decision by a U. S. Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the appellant testified at a videoconference hearing before the Board. A transcript of the hearing is included in the electronic claims file and has been reviewed. In February 2020, the Board remanded this matter for medical inquiry. The case is again before the Board for appellate review. Service Connection The appellant claims that he developed hearing loss and tinnitus as the result of military noise exposure during ACDUTRA. Law and Regulations Under VA guidelines, hearing loss will be considered a disability for VA disability compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000 or 4000 Hz 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 connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during active service the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The term active service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and Analysis The evidence in this matter consists of lay statements from the appellant, service treatment records (STRs), VA treatment records, medical evidence from the Social Security Administration (SSA), and a May 2014 VA audiology examination report. The evidence establishes that the appellant has tinnitus and bilateral hearing loss disability under 38 C.F.R. § 3.385. This is demonstrated in the VA treatment records, which note tinnitus as a diagnosis, and which note speech recognition below 94 percent in each ear, and note auditory thresholds of 40 decibels bilaterally in frequencies between 500 and 4000 Hz. The record also establishes that the appellant was exposed to noise while conducting military training during ACDUTRA. The record indicates, however, that the appellant did not incur tinnitus or a hearing loss disorder during ACDUTRA. The STRs are negative for a hearing disorder. October 1980 reports of medical examination and history are negative for hearing problems. There is no evidence indicating either disorder was present for many years following ACDUTRA. In fact, the earliest evidence of either tinnitus or hearing loss is dated in the 2010s, over 30 years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). In short, the objective record does not document the existence of a chronic hearing disorder during ACDUTRA or for many years following service. Rather, the preponderance of the probative evidence indicates that, for approximately 30 years following service, the appellant did not have characteristic manifestations sufficient to identify a chronic disease entity. See 38 C.F.R. § 3.303. Moreover, the preponderance of the evidence addressing the issue of medical nexus counters the claims. In the only opinion of record addressing the issue of medical nexus, the May 2014 VA examiner found it unlikely that hearing loss or tinnitus related to service. In support, the examiner noted the absence of “complaints or evidence of” hearing loss or tinnitus during service and for many years after service. The Board finds the opinion of probative value because it is based on an examination of the evidence and is explained. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). In assessing this claim, the Board has considered the appellant’s lay assertions. He is competent to report observable symptoms such as diminished hearing acuity and ringing in his ears. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the appellant is not competent to determine issues such as diagnosis and etiology. The development of a chronic neurological disorder, such as sensorineural hearing loss or tinnitus, is an internal pathology beyond a layperson’s capacity to observe, sense, or feel. Its development is a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On this more complex question, the lay evidence is outweighed by the May 2014 VA opinion. As the preponderance of the evidence is against the claims to service connection, the benefit-of-the-doubt doctrine does not apply, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The appellant asserts that he incurred a psychiatric disorder during ACDUTRA between September 1977 and February 1978. He states that he witnessed deaths during training. Despite the RO’s repeated requests, the appellant has not provided additional information to support his claim, such as the names of servicemembers who died, when they died, where they died, or how they died. Nevertheless, the RO indicated that, as the result of its development, deaths did occur during the appellant’s training. Further, the evidence shows that the appellant has been diagnosed with psychiatric disorders. Based on the foregoing, the RO should provide a VA compensation examination into the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the remanded claim. Include in the claims file any outstanding VA treatment records. Attempt to include in the claims file STRs pertaining to ACDUTRA between September 1977 and February 1978. All records/responses received must be associated with the electronic claims file. 2. Schedule an examination with a VA psychologist or psychiatrist to determine the nature and etiology of any acquired psychiatric disorder. After reviewing the claims file, interviewing the appellant, and examining him, the examiner should answer the following questions: (a). What acquired psychiatric disorders does the appellant have? (b). Is it at least as likely as not (i.e., probability of 50 percent or greater) that any non-PTSD acquired psychiatric disorder had its onset during ACDUTRA between September 1977 and February 1978, or is related to a disease, event, or injury during ACDUTRA? In answering (b), discuss the appellant’s assertion that he witnessed deaths during training. (c). If the appellant is diagnosed with PTSD, is it at least as likely as not that the asserted stressor of witnessing deaths is adequate to support the PTSD diagnosis? (d). If so, is it at least as likely as not that the PTSD symptoms underlying the PTSD diagnosis relate to the alleged stressor? Only answer (c) and (d) if you find that the appellant has PTSD. Note that a service connection finding for PTSD requires medical evidence establishing a diagnosis of the disorder in accordance with 38 C.F.R. § 4.125 (a); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current PTSD and the claimed in-service stressor. 38 C.F.R. §§ 3.304 (f), 4.125. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. During his hearing before the Board in July 2019, the appellant indicated that he may have had psychiatric disorders prior to ACDUTRA. If you find that the appellant had a psychiatric disorder during ACDUTRA but that the disorder existed prior to commencement of ACDUTRA, answer the following questions. (e). Is it clear and unmistakable (i.e., undebatable) that the psychiatric disorder that existed during ACDUTRA existed prior to ACDUTRA? (f). If so, is it clear and unmistakable that any such disorder WAS NOT aggravated (i.e., permanently worsened) by ACDUTRA? In other words, is it clear and unmistakable that any increase in severity during ACDUTRA of a pre-service psychiatric disorder was due to the natural progress of the disorder? Do not answer (e) and (f) if you find that a psychiatric disorder did not exist during ACDUTRA. Please explain in detail any opinion provided and the supporting rationale. In rendering the requested opinion, the examiner should note that the appellant is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant and the other lay witnesses, the examiner should indicate this in the examination report and provide a rationale for that determination. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.