Citation Nr: 21001617 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-22 323 DATE: January 11, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran’s current PTSD is causally related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1978 to November 1990. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for PTSD and left ear hearing loss. The Veteran filed a timely notice of disagreement received by VA in June 2015. In March 2016, the RO issued a statement of the case. The Veteran’s substantive appeal was received by VA in May 2016. In February 2019, the Veteran testified at Board videoconference hearing before the undersigned. A transcript is of record. In May 2019, the Board remanded the matter for further development. The RO issued a supplemental statement of the case in July 2020 and the matter was returned to the Board. Entitlement to service connection for PTSD. The Veteran contends that he has PTSD as a result of a stressful incident during active duty. Specifically, he claims that in 1983, during his tour of duty in Korea, he was participating in a training exercise approximately five miles from the demilitarized zone (DMZ) when the North Koreans shot thousands of rounds of ammunition across the border. This caused an immediate alert. The Veteran recalls that he was close enough to hear the shots and this caused him to be in fear for his life. See e.g. February 2019 hearing transcript. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and 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 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). Fear of hostile military or terrorist activity means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho- physiological state of fear, helplessness, or horror. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39–40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). “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 shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Veteran’s service treatment records are negative for complaints or findings of a psychiatric disability. At his April 1978 enlistment examination, and during an October 1989 “Every Four Year Active Duty” examination, psychiatric evaluations were normal. Military personnel records indicate that the Veteran was stationed in Korea with the 17th Field Artillery, 2nd Infantry Division from August 1983 to August 1984. His military occupational specialty was cannoneer/assembler. In pertinent part, the post-service record on appeal shows that in April 2000, the Veteran underwent a VA mental health assessment in connection with his claims of flashbacks which began four to five years previously and had worsened over the past six months. The Veteran described two stressful incidents which had recently occurred: a period of incarceration for cursing and abuse and witnessing a murder suicide of two brothers who lived across the street from him. When asked about his military service, the Veteran reported that he had had an experience with active fire while in Korea on Freedom Bridge, which he stated was three miles from the North/South Border. He recalled that North Korean soldiers fired 2000 to 2500 rounds at his company and he had significant fear of dying. The examining physician described the Veteran’s presentation as “strange” and recommended further evaluation. After further evaluation by a psychiatrist, the assessment was atypical presentation for PTSD, but with some key characteristics, such as nightmares, reexperiencing, hypervigilance. The Veteran was prescribed Zoloft and further evaluation was again recommended. On follow-up in May 2000, it was noted that the Veteran had come to VA because he had been court-ordered to attend anger management sessions but did not want to pay the $25 per session fee for those available at his local mental health department. He described the incident that led to his arrest as his having had a reaction to a war movie and then causing a ruckus which brought the police in. According to the Veteran, he was not aware of what he was doing and was nonviolent, just cursing and yelling. The examiner, however, noted that when she spoke with the Veteran’s case manager, she reported that the Veteran had held the police at bay with a knife and threatened them. He was initially charged with a felony for this but it was commuted to a criminal charge if he agreed to attend the anger management sessions. The examiner noted that the Veteran reported that he continued to have difficulty with behavior during sleep. Regarding his other symptoms, however, the examiner noted that she was “suspicious that the symptoms are being exaggerated, if not fabricated.” The diagnoses were rule out PTSD, rule out sleep terror disorder, rule out malingering. Later that month, the Veteran contacted the VA clinic with complaints of increasing agitation and suicidal thoughts. The examiner suggested that the Veteran come in for an evaluation but the Veteran indicated that he could not get a ride. When the examiner suggested emergency transport to a medical facility, the Veteran intimated that he would kill himself or try to kill any police officer who came to his house. The assessment was psychosis NOS, rule out schizophrenia, depression not otherwise specified. The examiner indicated that the Veteran “seems manipulative, countering my suggestions and limiting our treatment options, however, he contracts for safety…” The Veteran and his spouse agreed to call back if his situation deteriorated but there is no indication that he did so or further sought treatment for a psychiatric disability. In February 2013, the Veteran submitted a claim of service connection for multiple disabilities, including PTSD. Records assembled in connection with the claim include VA treatment records showing that in September 2012, the Veteran sought to establish care with VA for anxiety and depression. At that time, he reported daily suicidal ideation but no active plans. He was referred to the emergency department for examination. The emergency room psychiatrist, however, noted that the Veteran was upset about the referral and denied current suicidal ideation. With respect to his military history, the Veteran claimed that he was in “Desert Shield for six months in Saudi but left right before the war, before the first SCUD attack.” He did not report any stressors related to his tour of duty in Korea. The VA psychiatrist indicated that it was her opinion that the Veteran had endorsed a number of mental health symptoms in order “to get plugged into the system.” The assessments included depressive disorder, not otherwise specified, and alcohol abuse. The Veteran was given a mental health consultation. VA treatment records from November 2012 show that the Veteran attended a PTSD group session, but was deemed inappropriate for that group because he was not a combat veteran. VA treatment records show that the Veteran attended non-combat PTSD groups in December 2012. At one session, a VA clinical psychologist noted that the Veteran had not been formally diagnosed as having PTSD, but had symptoms consistent with PTSD including anxiety. VA treatment records from February 2013 show the Veteran had an initial visit with a new primary care provider. It was noted that the Veteran had been participating in group therapy for anxiety and depression. He told the provider that he had “PTSD from situations in the military (not combat related),” and wanted to see a psychiatrist. The Veteran attended anxiety cognitive behavioral therapy groups in February 2013 and March 2013. During an April 2013 mental health clinic visit, the Veteran reported symptoms such as nightmares, feelings of anxiety, irritability and anger outbursts. He indicated that his symptoms started in about 1987 and came and went. When asked about his “trauma history,” the Veteran reported intense experiences during training, including M16 discharge near his ear. If it was not blanks it would have killed him. He reported multiple vehicle accidents in night training, although no major injuries he felt intense fear and helplessness. Served in DMZ and in second week 3000 rounds were shot across zone. The assessment was anxiety disorder, not otherwise specified. In December 2014, the Veteran sought treatment at a different VA facility and claimed that he had been diagnosed as having PTSD in 2002 and had ongoing nightmares and flashbacks. The VA psychiatrist noted the Veteran presented with anxiety about his PTSD symptoms, including nightmares and flashbacks. The diagnoses were anxiety, not otherwise specified, by history and PTSD by history. During a January 2015 VA mental health consultation, the Veteran claimed that he had insomnia with very frequent nightmares, flashbacks, exaggerated startle reflex, and hypervigilance. He claimed that his “PTSD symptoms are from the time he spent in Korea.” The diagnoses were PTSD and major depressive disorder. Subsequent VA clinical records show that the Veteran continued to receive psychiatric treatment. Diagnoses included PTSD, depression, depressive disorder, and depression. During a March 2019 VA mental health clinic visit, the Veteran was noted to have a history of depression since 2000 and a questionable history of PTSD. He denied any current acute symptoms of depression or any symptoms of PTSD. The diagnoses were depressive disorder, not otherwise specified, and history of PTSD. At his February 2019 Board hearing, the Veteran testified that in 1983, while stationed in Korea, he was two to five miles from the DMZ when North Korean forces fired 25,000–30,000 rounds over the border during a training exercise in which the Veteran’s unit crossed a bridge. The Veteran stated that if something were to happen while forces were on the bridge, life expectancy was about five minutes. He testified that he thought about North Korean soldiers coming through the border to the bridge and stated that by the time backup arrived, it would be too late. The Veteran claimed that after the incident, he developed a fear of loud noises, such as people clapping, was not able to stand being surprised, and did not like being around large crowds. He claimed that he continued to have nightmares and flashbacks. In connection with this claim, the Veteran was afforded a VA examination in November 2019. The VA examiner diagnosed the Veteran as having PTSD with delayed expression, alcohol use disorder secondary to PTSD, and claustrophobia. The examiner noted that the Veteran’s PTSD presentation was atypical, and some of his symptoms presented later than directly after the in-service stressor. The examiner stated that it was impossible to distinguish which symptoms and what levels of impairment were attributable to each of the Veteran’s diagnosed mental health disorders because the disorders had overlapping symptoms and comorbidities. The examiner indicated that the Veteran’s PTSD was the result of two stressors: (1) the incident in Korea recounted by the Veteran at the February 2019 Board hearing, and (2) the post-service death of the Veteran’s two-month-old daughter. The examiner reported that each stressor met the applicable criterion to support a diagnosis of PTSD. In addition, the in-service stressor was related to the Veteran’s fear of hostile military or terrorist activity. The examiner opined that the Veteran’s PTSD was at least as likely as not related to the Veteran’s active service. The examiner explained that the Veteran most likely had developed subclinical PTSD after the in-service stressor, but after the occurrence of the post-service stressor in 1996, his subclinical PTSD worsened and he developed clinical PTSD with delayed expression. The examiner also opined that the Veteran’s alcohol use disorder in partial remission was at least as likely as not related to the in-service stressor and secondary to the Veteran’s PTSD because the Veteran used alcohol to self-medicate his PTSD symptoms. After considering the record on appeal in light of the applicable legal criteria, the Board finds that service connection for PTSD is warranted. The evidence of record establishes the first element necessary for service connection for PTSD, medical evidence of a diagnosis. VA treatment records and the November 2019 VA examination record a diagnosis of PTSD under DSM-5. As to the second element for service connection, medical evidence of a link between the current symptoms and an in-service stressor, the November 2019 VA examiner opined that the Veteran’s current PTSD is the result of his active service, particularly the incident in Korea recounted by the Veteran at the February 2019 Board hearing. With respect to the third element, the record does contain credible supporting evidence that the claimed in-service stressor occurred. However, the Board finds that the third element of service connection for PTSD is nonetheless met under the provisions of 38 C.F.R. § 3.304(f)(3). The November 2019 VA examination and the Veteran’s testimony at the February 2019 Board hearing establish that the reported in-service stressor related to the Veteran’s fear of hostile military or terrorist activity. The Veteran reported hearing nearby small-arms fire and fearing that hostile military forces, the North Korean Army, would overrun his unit and that he would be killed before reinforcements could arrive. And the VA examiner stated that this stressor would be sufficient to support a diagnosis of PTSD. In light of this evidence, and granting appropriate benefit of the doubt to the Veteran, the Board finds that this stressor satisfies the definition of fear of hostile military or terrorist activity, and thus that lay evidence alone is sufficient to establish the third element necessary for service connection for PTSD. For the foregoing reasons and bases, the Board concludes that service connection is warranted. REASONS FOR REMAND Entitlement to service connection for left ear hearing loss is remanded. The Veteran contends that he has left ear hearing loss as a result of hazardous noise exposure in service. The Veteran is already in receipt of service connection for right ear hearing loss. The Veteran’s April 1978 enlistment examination showed that his ears were normal, and the Veteran denied having or ever having had ear trouble or hearing loss. Audiometric testing revealed puretone thresholds, in decibels, as follows:        HERTZ       500 1000 2000 3000 4000 RIGHT 10 15 10 n/a 15 LEFT 25 20 10 n/a 5 In-service audiometric testing in May 1979 revealed puretone thresholds, in decibels, as follows:        HERTZ       500 1000 2000 3000 4000 RIGHT 30 30 25 25 20 LEFT 25 30 30 25 20 Service treatment records from October 1979 show that the Veteran had a possible diagnosis of vertigo and an audiogram was requested. Audiometric evaluation was indicative of normal hearing. An October 1989 in-service examination noted that the Veteran had a non-tender dermoid type cyst on the posterior aspect of the right earlobe, but noted no other abnormalities with the Veteran’s ears. It was also noted that the Veteran was routinely exposed to hazardous noise. Audiometric testing revealed puretone thresholds, in decibels, as follows:        HERTZ       500 1000 2000 3000 4000 RIGHT 15 15 15 20 45 LEFT 10 5 5 0 0 Post-service VA treatment records from November 2012 show that the Veteran had mild sensorineural hearing loss of the left ear above 1000 Hertz with a word recognition score of 100 percent. January 2013 VA treatment records indicate the Veteran’s hearing was essentially normal in the left ear. In connection with the Veteran’s April 2013 claim for service connection for bilateral hearing loss, the Veteran was afforded a VA examination in August 2014. Audiometric testing revealed puretone thresholds, in decibels, as follows:        HERTZ       500 1000 2000 3000 4000 RIGHT 15 20 15 30 60 LEFT 5 10 20 10 25 Speech discrimination using the Maryland CNC word list was 92 percent in the right ear and 98 percent in the left. The examiner opined that the Veteran’s right ear hearing loss was at least as likely as not caused by or the result of an event in military service based on evidence of in-service noise exposure. However, because the Veteran did exhibit a hearing loss disability for VA purposes for his left ear, the examiner did not provide an opinion on the etiology of any decreased left ear hearing acuity. At the February 2019 Board hearing, the Veteran testified that his hearing had worsened since his previous compensation and pension examination. As a result, in May 2019, the Board remanded the matter and directed the RO to afford the Veteran another examination. Pursuant to the Board’s remand, the Veteran was afforded a VA examination in November 2019. Audiometric testing revealed puretone thresholds, in decibels, as follows:        HERTZ       500 1000 2000 3000 4000 RIGHT 55 65 55 60 70 LEFT 75 80 75 80 80 Speech discrimination using the Maryland CNC word list was 68 percent in the right ear and 72 percent in the left. The examiner stated that the Veteran reported he could not hear anything without his right hearing aid in, and that he could not hear at all out of his left ear. The November 2019 VA examiner stated that the puretone test results were not valid because speech recognition results were not consistent with puretone testing for unknown reasons. The examiner further explained that use of speech discrimination score was appropriate for the Veteran’s right ear, but not for the left. The examiner indicated that she could not determine a medical opinion regarding the etiology of the Veteran’s left ear hearing loss without resorting to speculation because the testing was inconsistent and repeated testing was necessary to rule out inorganic hearing loss. Because the November 2019 VA examiner was unable to obtain valid audiometric results and recommended retesting, the Board finds that remand is necessary to provide such retesting and to obtain a medical opinion. “[O]nce [VA] undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, [VA] must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran is advised that it is his obligation to cooperate with VA’s efforts to obtain the evidence necessary to substantiate his claim, to include participating fully and faithfully in the examination process. 38 C.F.R. §§ 3.326, 3.655. His failure to do so may result in the denial of his claim. The matters are REMANDED for the following action: Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of any left ear hearing loss. Access to the claims file should be made available for review by the examiner for review in connection with the examination. After examining the Veteran and reviewing the record, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any current left ear hearing loss identified on examination is causally related to the Veteran’s active service. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hillan Sosa, 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.