Citation Nr: 20037552 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 18-30 954 DATE: June 2, 2020 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for Post-Traumatic Stress Disorder (PTSD) with Major Depressive Disorder is granted. FINDINGS OF FACT 1. Tinnitus is attributable to service. 2. PTSD with Major Depressive Disorder is due to inservice stressors. CONCLUSIONS OF LAW 1. Tinnitus was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. PTSD was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2004 to November 2010. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110 (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Tinnitus The Veteran contends tinnitus started in service while in Afghanistan in 2009. See January 2017 VA examination. The Veteran also had prior service in Iraq. His DD 214 shows that he served in a designated imminent danger pay area. In other documents in the evidence of record, the Veteran reported exposure to improvised explosive devices (IEDs) and being under both direct and indirect fire in both Iraq and Afghanistan. See January 2017 VA PTSD examination; April 2017 VA psychiatric treatment note. The Veteran reported tinnitus when he established medical care with VA in September 2015. During the January 2017 VA examination, he reported ongoing bilateral constant high-pitched ringing that occurs in both ears. The Board finds the Veteran’s report of noise exposure during service is consistent with the record. Tinnitus may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an organic disease of the nervous system under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, there is evidence of in-service noise exposure, reports of tinnitus during service, and reports of a continuity of symptomatology from service. While the Board does note that service treatment records do not document any relevant complaints or diagnoses, considering the credible report of in-service noise exposure, the Veteran’s competence to identify tinnitus, and the reports of onset in service and continuity thereafter, the Board concludes that entitlement to service connection is warranted. The Board notes there is a January 2017 VA opinion regarding tinnitus in which the examiner concluded that it was less likely that the Veteran’s tinnitus was related to service and provided a rationale for that opinion. However, the Board does not find the opinion entitled to greater weight than the evidence that tinnitus was incurred in service. 1. PTSD with Major Depressive Disorder The Veteran’s primary stressor for PTSD was identified in VA treatment records was an explosion caused by an IED in April 2009. He also reported being under (direct and indirect) fire, serving on convoy security duty in Afghanistan, and seeing a lot of injured and dead Polish soldiers and Afghans. An April 2016 VA treatment note reports unloading mortally wounded and dying comrades from a helicopter, helping with recovery missions to pick up the wounded, and being around indirect fire constantly. As an initial matter, the Veteran’s claim was for service connection for anxiety, insomnia, and depression. VA treatment records indicate the Veteran’s acquired psychiatric disorder as a single episode of moderate Major Depressive Disorder and PTSD. This decision reflects these diagnoses. Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). There is also provision applying to specific type of claimed stressor, with at least one relevant here. 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 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. 38 C.F.R. § 3.304(f)(3). As noted above, the Veteran had service in both Afghanistan and Iraq, including in an imminent danger pay area, and was awarded the Iraq Campaign Medal and Afghanistan Campaign Medal. The Department of Defense provides imminent danger pay area to those who are on duty in foreign areas where they are subject to the threat of physical harm or imminent danger because of civil insurrection, civil war, terrorism, or wartime conditions. The campaign medals are also generally considered evidence of service in an area of potential hostile military or terrorist activity. An April 2016 VA treatment record from a VA psychiatrist found these stressors satisfied criterion A for PTSD. In-service stressor is therefore established under § 3.304(f) or § 3.304(f)(3). VA treatment records note that the Veteran established care with VA in September 2015 reports that the Veteran reported being in combat and reported a past medical history of depression and he specifically sought care because the Veteran’s wife believed he had PTSD, as he was not sleeping, was often angry for no reason, and avoids crowds. He reported his behavior change markedly since last deployment. VA staff psychiatrists or other medical professional(s) diagnosed the Veteran with several DSM-V diagnosis at the beginning of treatment (from September 2015 to April 2016), including Unspecified Anxiety Disorder (R/O PTSD), Other Trauma or Stressor Related Disorder, and single episode moderate Major Depression Disorder (ongoing for years). He has been placed on multiple medications for anxiety, insomnia, and depression. A VA staff psychiatrist described symptoms of poor sleep, with odd dreams and frequent nightmares related to combat, anger, depression, low energy, feelings of hopelessness, loss of interest in things he used to enjoy, inability to concentrate, generalized anxiety at times, excessive worrying, restlessness, inability to relax depending on the situation, avoidance of memories and cues, hyperarousal, preference to be alone, intrusive memories, and super alert to surroundings. See April 2016 VA treatment recording. After an assessment, the same VA staff psychiatrist reported a diagnoses of PTSD and single episode Major Depressive Disorder, moderate, in February 2017 and again in February 2018. There is also a VA examination dated in January 2017. The examiner, a psychiatrist, found no mental disorder. The examiner stated the Veteran did not endorse symptoms sufficient for a diagnosis of a mental disorder. The examiner reported an IED attack in April 2009 as the stressor – but also reported this stressor was not adequate to support Criterion A for PTSD or any of the other PTSD criterion. The Board has considered the VA examiner’s opinion. However, the VA treatment record (which spans several years) notes that the Veteran had several diagnoses from at least two separate psychiatrists and at least one other VA medical professional (who did not give their degree or specialty). It is unlikely that the Veteran does not have a psychiatric disorder. As the VA examiner did not find a disorder and did not provide an etiology, the Board is left with the VA medical professionals opinions, particularly the two dated in April 2016 and February 2017 containing a detailed assessment and finding that the Veteran had PTSD based on in service stressors. These opinions appear accurate, reported the Veteran’s symptoms, and found them due to in-service stressors. Therefore, a grant of service connection for PTSD is warranted. Regarding a depressive disorder, the VA treatment records indicates the symptoms overlap (anger, low energy, poor sleep, lack of interest in activities) and the claim is therefore granted as PTSD with Major Depressive Disorder. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, 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.