Citation Nr: 21001159 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-43 092 DATE: January 7, 2021 ORDER Service connection for bilateral hearing loss is granted. REMANDED An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and body dysmorphic disorder is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran’s current bilateral hearing loss is as likely as not related to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1983 to October 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In July 2019, the Board, in relevant part, denied entitlement to service connection for bilateral hearing loss and granted entitlement to an initial rating of 50 percent, but not higher, for service-connected PTSD and body dysmorphic disorder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claim (Court). In a September 2020 Joint Motion for Partial Remand (Joint Motion), the parties requested that the Court vacate the portion of the Board decision that denied entitlement to service connection for bilateral hearing loss and an initial rating in excess of 50 percent for PTSD and body dysmorphic disorder. The parties agreed that the portion of the Board’s decision finding that new and material evidence had been submitted to warrant reopening the claim for service connection for bilateral hearing loss and granting entitlement to an initial rating of 50 percent for PTSD and body dysmorphic disorder represent favorable findings for the Veteran that could not be disturbed. In a May 2020 Order, the Court granted the Joint Motion and returned it to the Board for further action consistent with the Joint Motion. 1. Service connection for bilateral hearing loss Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service and hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the law administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) 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. “[W]hen audiometric test results at a Veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). After reviewing the record and resolving all doubt in favor of the Veteran, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. The Veteran asserts, in essence, that he began experiencing hearing problems during service and that his symptoms have continued since that time. More specifically, he asserted that he was exposed to significant weapons and artillery noise while assigned for nearly three years to an artillery unit as a cannon crewmember, during which time he stood immediately next to M110 Howitzers when fired; that he either did not wear hearing protection or, if worn, could still hear the vibration of the Howitzers; that he was an M16 Marksman and Hand Grenade expert; that during audiological testing at the time of his service discharge examination, he guessed by pressing the button every few seconds “even though [he] was not hearing a thing but that constant roaring or buzzing” because they had been told that “if we claimed anything was wrong with us that we would be held over for weeks” and that, although he noticed his hearing loss, he did not want to be extended, particularly in light of his face and skin condition. See September 2018 Board hearing testimony and the Veteran’s May 2012, September 2017, February 2018 and September 2020 statements. Although the Veteran is not competent to diagnose a hearing loss disability, he is competent to identify the presence of hearing difficulties during and since service and has credibly done so in this case. See 38 C.F.R. § 3.159 (a) (2). Service personnel records reflect that the Veteran’s military occupational specialty was cannon crewmember for 2 years and 9 months and that he was awarded hand grenade expert and M-16 Rifle marksman badges. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran experienced significant noise exposure during service. The medical evidence shows the Veteran is diagnosed with a bilateral hearing loss disability for VA purposes based on speech recognition scores shown during the December 2012 VA examination. See 38 C.F.R. § 3.385. Thus, the question becomes whether the current bilateral hearing loss disability is related to service. On this question, there are competent medical opinions in favor of and against the claim. A December 2012 VA examiner opined that the Veteran’s current bilateral hearing loss was less likely than not related to service. She reasoned that the Veteran’s service entrance and discharge hearing tests indicated normal hearing bilaterally; that noise induced hearing loss is not known to have delayed onset; and that normal hearing at the time of discharge indicates that noise induced damage to the inner ear was not present at discharge. Conversely, a July 2016 opinion from the Veteran’s private audiologist linked the current bilateral hearing loss to service, opining that the Veteran’s bilateral hearing loss is consistent with noise induced hearing loss likely caused by acoustic exposure during service. He reasoned that the Veteran’s significant hearing difficulties are progressive in nature; that the extreme sound pressure levels generated by artillery fire at close proximity are sufficient to damage the human auditory system with a single exposure; and that the likelihood of noise induced hearing loss increases with repeated exposure. The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. The Board finds that, after reviewing the medical and lay evidence of record, to include the Veteran’s credible lay statements, the evidence is at least in equipoise as to whether the Veteran’s current bilateral hearing loss is related to noise exposure during service. Accordingly, after resolving all reasonable doubt in the Veteran’s favor, service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 2. An initial rating in excess of 50 percent for PTSD and body dysmorphic disorder The Board finds that further development is needed prior to adjudicating the claim for an initial rating in excess of 50 percent for PTSD and body dysmorphic disorder. The Board notes that the Veteran’s last VA PTSD examination was in December 2012. The Veteran submitted disability benefit questionnaires completed by private clinicians dated in August 2018. During the September 2018 Board hearing, the Veteran asserted that this PTSD and body dysmorphic disorder has worsened. In light of the record, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD and body dysmorphic disorder. Additionally, there may be outstanding medical treatment records. During the September 2018 Board hearing, the Veteran testified that he received medical treatment relevant to his psychiatric disorder from private providers, including Dr. Loburse, Dr. Birdsong, Dr. Wortman and Dr. Soon. While private treatment records from Dr. Birdsong dated in 2012 through 2017 and from Dr. Wortman dated in 2012 are of record, it is unclear if these treatment records are complete and if medical records from all private treatment providers were requested or obtained. Reasonable efforts should be made to obtain any outstanding private and VA treatment records. This matter is REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his PTSD and body dysmorphic disorder, to include any private medical providers. After securing any necessary releases, request any relevant records identified that are not duplicates of those associated with the claims file. In addition, obtain outstanding VA treatment records. If any requested records are not available, the claims file should be annotated to reflect such, and the Veteran notified of such. 2. After records development is completed, schedule the Veteran for a VA examination to determine the current severity of his PTSD and body dysmorphic disorder. The claims file should be reviewed by the examiner. All indicated testing should be performed and the results reported. All symptomatology associated with the Veteran’s PTSD and body dysmorphic disorder should be reported. 3. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.