Citation Nr: 20029589 Decision Date: 04/28/20 Archive Date: 04/28/20 DOCKET NO. 18-35 955 DATE: April 28, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include insomnia and post-traumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran has a current PTSD diagnosis. 2. The Veteran’s acquired psychiatric disorder is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include insomnia and PTSD, have been met. 38 U.S.C. §§ 1110, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304(f), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty service from June 1991 to August 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision by the VA Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902 (c). 38 U.S.C. § 7107 (a)(2). The Board has recharacterized the Veteran’s claim for insomnia more broadly to an acquired psychiatric disability, to include insomnia and PTSD, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). In the August 2019 Board decision, the Veteran’s claims were remanded for further development. The RO was requested to contact the Veteran to receive copies of two missing buddy statements and provide VA examinations. In November 2019, the RO contacted the Veteran for the two missing buddy statements, and these statements were obtained and associated with the claims file in December 2019. Also, VA examinations were conducted in January 2020 addressing the Veteran’s acquired psychiatric disorder. Thus, there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for an acquired psychiatric disorder, to include insomnia and PTSD, is granted. The Veteran contends that his acquired psychiatric disorder is related to service. In particular, he stated that he is unable to sleep due to traumatic events in-service. Further, he stated that he experienced numerous in-service practice and real fire drills. For example, he stated his stationed ship’s boiler room caught fire. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2018); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). There are specific additional criteria to establish service connection for PTSD: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a). 38 C.F.R. § 3.304(f). The requirement of an in-service stressor is established by the Veteran’s testimony alone if he is shown to have engaged in combat with the enemy. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996). If VA determines the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor’s occurrence and no further development or corroborative evidence is required provided that such testimony is found to be “satisfactory,” i.e., credible, and “consistent with the circumstances, conditions, or hardships of service.” See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Where VA determines that a veteran did not engage in combat, the veteran’s lay testimony, by itself, will not be sufficient to establish the alleged stressor. Instead, the record must contain service records or other independent, credible evidence to corroborate the Veteran’s testimony as to the alleged stressor. Dizoglio, 9 Vet. App. at 166. A veteran is entitled to the benefit of the doubt, standard of proof for benefit claim decisions. 38 U.S.C. § 5107(b). The benefit of the doubt is applicable when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In the June 2017 Joint Services Research Records Center response, it was reported that the Veteran’s stationed ship deck logs do not document the ship at general quarters due to a boiler fire. The Veteran provided two buddy statements. In the first buddy statement, M.R. stated he served with the Veteran on sea where they served as first responders on the ship’s Fire Brigade. M.R. stated that they experienced real and practice fire drills. In particular, M.R. stated the worse fire was the boiler explosion that happened beneath their sleeping area. After responding to the boiler explosion, M.R. stated that the first responders were scared because it was dark and hot, and they did not know if another explosion would occur while trying to exhaust the fire. In the second buddy statement, T.G. stated he worked with the Veteran for about two years on the ship maintenance, Fire Team (First Response). T.G. stated that they had lots of practice and real fire drills, and this environment would get extreme during real fires. For instance, T.G. stated that during their first deployment a boiler exploded which was one of the worst because it was very dangerous. The Veteran was afforded two VA examinations. First, in the March 2017 VA examination, the Veteran was diagnosed with PTSD and an unspecified sleep disorder. The VA examiner opined that the Veteran’s PTSD was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner reasoned that the Veteran’s experiences on being confined in small spaces, on-deck experiences, being surrounded “by nothing but water,” and continuous loud noises have been associated with the development of PTSD meeting DSM-5 diagnostic severity levels during Desert Storm active combat. Second, in the January 2020 VA examination, the Veteran was diagnosed with PTSD. The VA examiner opined that the Veteran’s acquired psychiatric disorder was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner reasoned that the Veteran had no mental health issues prior to service. Further, he now has clear PTSD symptoms as identified in the report which are related to the claimed in-service stressor—fire brigade trainings and intervention in a Navy ship boiler room fire. Thus, his symptoms meet DSM criteria for PTSD. Additionally, the VA examiner reasoned that the Veteran’s difficulties sleeping are related to his lack of treatment for obstructive sleep apnea (OSA)—not using a CPAP. The VA referenced that obesity/lack of exercise, and some sleep hygiene mismanagement are causes of his OSA. Overall, he does not qualify for a sleep disorder diagnosis and his sleep difficulties are not related to service. A medical opinion based on a post-service examination of a veteran can be used to establish the occurrence of a stressor; however, the Board may consider and weigh this evidence in the context of the entire record. Menegassi v. Shinseki, 638 F.3d. 1379 (Fed. Cir. 2011). Based upon review of the evidence, the Board finds the March 2017 and January 2020 VA medical opinions are highly probative. Both VA medical opinions provided sufficient rationales that addressed the Veteran’s lay statements and were based on a complete review of the medical record. In conjunction, the Veteran’s buddy statements are credible in supporting his reported in-service stressor. Accordingly, the Board finds that the Veteran’s PTSD, as confirmed by VA examiners, is due to his in-service stressor, and as such, service connection is warranted. Therefore, the Board resolves all doubt in his favor and finds that service connection for an acquired psychiatric disorder is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. 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 (1993). However, to establish a current hearing loss disability for VA purposes, hearing examination results must meet the standards of 38 C.F.R. § 3.385. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels 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. On the authorized audiological evaluation in the December 2016 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 45 50 50 55 LEFT 60 60 65 75 80 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 58 in the left ear. Overall, the December 2016 VA examiner indicated that the Veteran had sensorineural hearing loss in both ears. On the authorized audiological evaluation in the January 2020 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 20 15 LEFT 15 20 20 20 20 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear. Overall, the January 2020 VA examiner indicated that the Veteran had normal hearing in both ears. “Where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted.” Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Here, there are drastically conflicting audiological evaluation results. Thus, a supplemental medical opinion is necessary to address the conflicting audiological evaluations and determine if the Veteran has bilateral hearing loss. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to a qualified clinician to determine the etiology of the Veteran’s bilateral hearing loss. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination(s) is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The June 2016 VA treatment records where it notes the Veteran was negative for bilateral hearing loss. b. The December 2016 VA examination where it indicates the Veteran has bilateral hearing loss. c. The January 2020 VA examination where it indicates the Veteran does not have bilateral hearing loss. The examiner should initially confirm the Veteran has bilateral hearing loss, as that condition is defined for VA purposes under 38 C.F.R. § 3.385. Provided so, the examiner should opine as to whether bilateral hearing loss was at least as likely as not (50 percent or greater probability) incurred in or is otherwise etiologically related to the Veteran’s service, or manifested within one year of separation from service. The examiner is requested to address any statements or assertions from the Veteran regarding excessive loud noise exposure in service, as opposed to post-service occupational or recreational noise exposure. A negative opinion based solely on normal hearing at separation from service is not adequate for VA purposes. 2. Ensure that the directive specified in this remand has been implemented. If it has not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran an opportunity to respond. The case should then be returned to the Board, if in order, for further review. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, 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.