Citation Nr: 20028353 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 16-18 912 DATE: April 22, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder, including but not limited to posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for residuals of hepatitis C, to include claimed cirrhosis of the liver, is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1970 to August 1971. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for the above claims. The Veteran’s Notice of Disagreement (NOD) was received in March 2015. The RO issued the statement of the case (SOC) in March 2016, and the Veteran’s VA Form 9, substantive appeal was received in April 2016. In January 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of her testimony is associated with the claims file. This claim will be construed broadly to include any acquired psychiatric disability that may reasonably be encompassed by the description of the claim, reported symptoms, diagnoses, and other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Veteran’s claim is re-characterized as listed above, and includes all diagnosed psychiatric disorders. 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that she has an acquired psychiatric disorder due to an incident of military sexual trauma (MST). Specifically, the Veteran contends that in late 1970 she was sexually assaulted late at night after she left work at her secondary job at the base theater. She states she did not report the rape because she was threatened not to say a word and was worried about the potential for retaliation towards other women on the base. See Hearing Transcript at 5, 8. Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but is not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases, and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(5). The Veteran’s service treatment records (STRs) do not reflect any psychiatric complaints or symptoms. In addition, the Veteran’s service personnel records do not contain any corroborating evidence of the Veteran’s claimed MST and do not show a clear change in behavior after the alleged incident. In addition, the Veteran has made inconsistent statements regarding the claimed MST in service. In January 2014, the Veteran stated that she could only remember being taken into a room alone with a man and believes she may have been drugged. See January 2014 mental health note. In March 2014, she stated that the MST occurred after an exercise when she was escorted to the sauna by a male peer. She stated that she was unable to remember anything after that and believes she blocked it out from her memory. See March 2014 VA progress note. During the January 2020 hearing, the Veteran stated that the MST occurred sometime in the Autumn of 1970, late at night after she left her secondary job at the base theater. She stated that she was taken into a building and sexually assaulted in a dark area and threatened not to say a word to anyone. See Hearing Transcript 5, 8. No medical evidence of record shows that the Veteran has been diagnosed with PTSD. However, VA treatment records show that the Veteran was diagnosed with unspecified adjustment disorder in January 2014. She was also diagnosed with a cognitive disorder, NOS (not otherwise specified) in January 2014. In September 2014, a VA social worker indicated an assessment of adjustment disorder (NOS) and R/O (rule out) PTSD. In essence, while the VA outpatient treatment records reference the Veteran’s alleged in-service MST, the Veteran’s own account of the in-service MST is not entirely consistent, and it has not been corroborated. Additionally, there is currently no diagnosis of PTSD based on the Diagnostic and Statistical Manual of Mental Disorders (DSM). However, she does have a diagnosis of adjustment disorder, and the Veteran has not been afforded a VA examination to determine the likely etiology of her psychiatric disorder(s). In disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Appellant's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold under McLendon is low. A VA examination is necessary in this case. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. The Veteran contends that her bilateral hearing loss and tinnitus are a result of her in-service noise exposure. Specifically, the Veteran contends that she developed bilateral hearing loss and tinnitus during active service as a result of acoustic trauma caused by loud noise experienced while serving with an artillery unit and during practice at the shooting range where she was not provided hearing protection. See Hearing Transcript at 3, 7. Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran’s STRs were absent of any complaints, findings, or diagnoses of hearing loss. However, her separation examination included only a whisper test and did not include an audiometer test. The Veteran underwent a VA audiological examination in November 2014. The examination report indicates that the Veteran has current diagnoses of a bilateral hearing loss disability and tinnitus. The VA examiner provided the opinion that the Veteran’s bilateral hearing loss were less likely than not caused by or a result of noise exposure during service. The VA examiner based this opinion primarily on the low probability of hazardous noise exposure associated with the Veteran’s MOS and her length of service. The VA examiner also provided the opinion that the Veteran’s tinnitus was less likely than not caused by or a result of noise exposure during service. For rationale, the examiner simply stated, “Her MOS has a low probability of noise exposure.” However, the November 2014 VA opinion did not consider the Veteran’s January 2020 hearing testimony wherein she states that she was stationed with the artillery school and noticed ringing in her ears and a loss of hearing in service. The Veteran’s STRs confirm that she was stationed with the artillery school for at least six months during active service. As the November 2014 VA examiner did not appear to take into consideration the Veteran’s 6 months of noise exposure during artillery school, another opinion is necessary to decide the claim. Therefore, on remand for a new VA examination, the VA examiner must address the Veteran’s assertions regarding in-service exposure to acoustic trauma without hearing protection and in-service onset of tinnitus and hearing loss. 4. Entitlement to service connection for residuals of hepatitis C. The Veteran contends that she contracted hepatitis C from an incident of MST during service. The record reflects that the Veteran has been previously diagnosed with hepatitis C but that she is currently considered cured for treatment purposes. See July 2015 VA Treatment Records. A service connection claim must be supported by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, it is unclear whether the hepatitis C has been cured for the entire period on appeal. Nevertheless, the Veteran also claims to have contracted residual cirrhosis from the hepatitis C. Thus, an examination is necessary to decide the claim. The Veteran has stated that she was the victim of sexual assault during service and that she believes she contracted hepatitis C from the incident as she has stated that she knows of no other risk factors. The question of etiology of hepatitis C requires a medical opinion. The Veteran has not been afforded a VA examination pertaining to her Hepatitic C or the claimed residuals therefrom. As such, the Veteran should be afforded a VA examination to determine whether she contracted hepatitis C during service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). The matters are REMANDED for the following action: 1. Obtain a VA psychiatric examination to determine the current nature and likely etiology of all of the Veteran’s acquired psychiatric disorders. The examiner is asked to review the Veteran’s claims file, including a copy of this remand, in conjunction with the examination. The examiner should obtain from the Veteran a full recorded history of her claimed in-service military sexual trauma (MST). Following a mental status examination and review of the claims file, please answer the following: (a) For all diagnosed psychiatric disorders other than PTSD, is it as likely as not (a 50 percent or higher probability) that any acquired psychiatric disorder had its onset during service, or is otherwise related to any incident of service, including but not limited to the reported MST? A complete rationale for the opinion is required. (b) Does the Veteran have a diagnosis of PTSD, and if so, is it supported by an in-service stressor in conformance with the Diagnostic & Statistical Manual of Mental Disorders (DSM)? A complete rationale for the opinion is required. 2. Schedule the Veteran for a VA audiological examination to determine the current nature and likely etiology and/or onset of the Veteran’s bilateral hearing loss and tinnitus. After obtaining a history from the Veteran as to the onset of symptoms, as well as a review of the file, please opine as to: (a) Whether it is at least as likely as not that the Veteran’s bilateral hearing loss and/or tinnitus were incurred in service, and/or are causally related to her service; (b) Whether it is at least as likely as not that her tinnitus was incurred in service, and/or is causally related to his service. The examiner should address the Veteran’s reported in-service onset of hearing loss and tinnitus and her reported noise exposure while stationed with the artillery school. (c) If the examiner determines that the Veteran clearly and unmistakably had a pre-existing hearing loss, then the examiner should also opine as to whether any pre-existing hearing loss was clearly and unmistakably aggravated by service; i.e. whether there was an increase in disability during service or as a result of in-service acoustic trauma not due to natural progress. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects any reports of symptomatology, a reason for doing so must be provided. 3. Obtain an examination by an appropriate VA examiner to determine the current nature and likely etiology of the Veteran's hepatitis C and any residuals thereof. After reviewing the claims file, the examiner is asked to address the following: (a) Opine as to whether the Veteran’s hepatitis C has been cured, and if so, approximately when was it cured. In this regard, the examiner is also asked to opine as to whether the Veteran had a diagnosis of hepatitis C at any time during the appeal period or approximate thereto (at any point from 2013 onward). (b) Opine as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran's hepatitis C is related to an in-service injury, event, or disease to include the claimed military sexual trauma (MST) during service. In rendering the opinion, the examiner is asked to address any other potential risk factors. (c) If the Veteran is found to have hepatitis C that is as likely as not a result of an inservice event, injury or disease, please opine as to all current residuals of the hepatitis C, to include whether the Veteran has hepatitis-induced cirrhosis of the liver. (Continued on the next page)   For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Modesto 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.