Citation Nr: 21005090 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-08 543 DATE: January 29, 2021 ORDER Entitlement to service connection for a psychiatric disorder, variously diagnosed, is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Review of the entire evidentiary record demonstrates that it is as likely as not that the Veteran has an acquired psychiatric disorder that is related to his military service and in-service stressful events. 2. The objective medical evidence shows that the current disability of bilateral hearing loss was not caused by an event, injury, or illness during active service, nor is it etiologically related to it. 3. The objective medical evidence shows that sensorineural bilateral hearing loss did not manifest to a compensable degree within one year of separation from active service. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968. A Board of Veterans’ Appeals (Board) hearing was held in June 2019 via videoconference with the undersigned Veterans Law Judge (VLJ) for the issues of entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and service connection for bilateral hearing loss. A transcript of this hearing is contained within the claims file. In September 2019, the Board issued a decision denying the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder. However, the Board vacated that decision in November 2019 so that the undersigned VLJ who held the June 2019 Board hearing may issue a decision. Thus, that issue came before the Board and in December 2019, the Board remanded the matter for further evidentiary development. The case has now returned to the Board for appellate review. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may 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). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period after service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). At this point, the Board notes that included among chronic diseases are “other organic diseases of the nervous system.” VA considers sensorineural hearing loss to be such a disease. Under 38 C.F.R. § 3.303(b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). 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; 38 C.F.R. § 3.102. 1. Entitlement to service connection for a psychiatric disorder, variously diagnosed The Veteran seeks entitlement to service connection for a psychiatric disorder. The Veteran contends that he has been diagnosed with PTSD, major depressive disorder (MDD) and cannabis use disorder, and that these psychiatric disorders are related to his military service. Specifically, the Veteran contends that he trained and developed friendships with servicemembers who subsequently died in combat. At the June 2019 Board hearing, the Veteran additionally contended that he saw and helped injured veterans returning from deployment, but he did not specify to what capacity. The Veteran’s medical treatment records reflect that the Veteran has been diagnosed with PTSD, MDD and cannabis use disorder, and these disorders were confirmed by the March 2020 VA examiner. Thus, current psychiatric disorders are established. As for an in-service injury, the Veteran’s service treatment records (STRs) are silent as to a diagnosis or symptoms of a psychiatric disorder. Additionally, the Board notes that the Veteran’s claimed stressor concerning his friends who died in combat were verified, but the event took place after the Veteran’s military service. The Veteran’s claimed stressor concerning seeing and helping injured veterans returning from deployment has not been verified or corroborated by review of the Veteran’s military personnel records (MPRs). The Board notes that the AOJ attempted to verify the Veteran’s claimed stressors. Specifically, the AOJ sent a subsequent development letter in December 2019 requesting additional information from the Veteran regarding the claimed stressful events. However, the Veteran did not respond, and the claimed events were not successfully verified. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran's statements concerning the events are credible. First, the Veteran’s DD-214 lists his military occupational specialty (MOS) as a Field Artillery Crewman and shows that the Veteran received the National Defense Service Medal. Second, the Veteran is competent to describe events that occurred and experienced while in service. Third, even though the AOJ was not able to find corroborating evidence, the Veteran's descriptions of the events are consistent with the places, types, and circumstances of his service, and his report and description of the events have also been consistent over time. Thus, the Board finds that the Veteran's statements on the events that occurred in service are credible. 38 C.F.R. § 3.303(a). Thus, the issue before the Board is whether his acquired psychiatric disorders are caused by the events described by the Veteran. In March 2016, the Veteran was afforded a VA examination. The March 2016 examiner confirmed the Veteran’s diagnoses of PTSD, MDD, and cannabis use disorder. The March 2016 examiner opined that the Veteran’s PTSD is at least as likely as not caused by the Veteran’s military service as it is consistent with the circumstances, conditions and hardships of that service and the Veteran’s claimed stressor involves a significant emotional response to exposure to hostile military or terrorist activity. The March 2016 examiner also opined that the Veteran’s MDD is at this time, more likely than not, aggravated by the impact of the PTSD on the Veteran’s lifestyle and that the Veteran’s cannabis use disorder has more likely than not been secondary to his PTSD at times as a form of self-medication. As previously mentioned, the Board remanded this matter in December 2019, finding that the March 2016 opinion seems to have been made based on the Veteran’s reporting of one of the above-mentioned stressors concerning the combat deaths of the Veteran’s friends. However, this stressor could not be verified or corroborated as occurring during the Veteran’s military service. Therefore, the March 2016 VA examination is inadequate to base a decision and an addendum opinion, or a new medical examination must be obtained to ascertain the nature and etiology of the Veteran’s diagnosed psychiatric disorder(s). The Veteran indicated during the June 2019 Board hearing that, while he was working at the motor company, he went to rehabilitation facility and sought psychiatric treatment in the 1970’s for a drug addiction problem and he spoke to psychiatrists at that time. The Board further remanded this matter to attempt to obtain these older records. Pursuant to the Board remand, the AOJ attempted to obtain these records and attempted to corroborate the Veteran’s claimed in-service stressors. However, no additional information was provided. Also pursuant to the Board remand, the Veteran was afforded a VA examination in March 2020. The March 2020 examiner reviewed the claims file and the conflicting medical evidence and confirmed the Veteran’s diagnoses of PTSD, MDD and cannabis use disorder. The examiner opined that the Veteran’s PTSD is at least as likely as not caused by the Veteran’s service and that his MDD also shares its etiology with his PTSD. The examiner provided the rationale that the Veteran’s psychiatric disorders are consistent with the circumstances, conditions, and hardships of the Veteran’s service and the Veteran’s claimed stressors and that his cannabis use disorder has more likely than not been secondary to his PTSD at times as a form of self-medication. In sum, the Board finds that the evidence presently before the Board is sufficient to grant the appeal: The Veteran has been diagnosed with psychiatric disorders, and the Veteran's statements about in-service events are credible. Moreover, the March 2020 medical opinion states that these disorders are related to in-service events. Any reasonable doubt in the evidence must be resolved in favor of the Veteran, and thus, entitlement to service connection for acquired psychiatric disorder is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral hearing loss The Veteran seeks entitlement to service connection for bilateral hearing loss. The Veteran contends that his bilateral hearing loss is related to his military service because of the nature of his military occupational specialty (MOS) and because he was not provided with hearing protection. At the June 2019 Board hearing, the Veteran further asserted that he was not exposed to loud noises during his post-service employment at the motor company or recreationally because he stopped going hunting after his military service. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be 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 Consonant-Vowel Nucleus-Consonant (CNC) Test are less than 94 percent. 38 C.F.R. § 3.385. When a claim for hearing loss is received, the decisionmaker must review the claim for sufficient evidence of a current disability (including lay evidence) and evidence of hearing loss in service or records documenting an event, injury, disease, or symptoms of a disease potentially related to an audiological disability. A veteran is competent to report symptoms of hearing loss as a disability because symptoms of hearing loss are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, a veteran’s testimony regarding hearing loss is sufficient to serve as evidence that the disability currently exists. Moreover, recent examination, as noted, shows findings that meet the criteria for hearing loss disability under the applicable regulation. The Veteran has also submitted written statements and his statements are supported by his post-service VA medical treatment record. Repeated complaints of and references to bilateral hearing loss are made and reflected in the Veteran’s VA medical treatment record. Where the Veteran’s contentions are not supported in the record concerns evidence of hearing loss in service or records documenting an in-service event, injury, disease, or symptoms of a disease potentially related to a subsequent, now current, audiological disability. As it is, the evidence of record shows that the Veteran’s STRs are absent for any complaint of bilateral hearing loss. There is no indication from the Veteran’s STRs that the Veteran complained of symptoms of hearing loss or auditory problems due to noise exposure. The Board notes that the Veteran’s DD-214 shows that his MOS is listed as Field Artillery Crewman. Thus, excessive noise exposure in service is also conceded. The Board notes that the Veteran’s November 1965 pre-induction examination contains audiometric readings indicative of normal hearing. The Veteran’s STRs are silent for complaints or diagnoses of bilateral hearing loss during service. The Veteran’s November 1967 separation examination contained audiometric readings of zeros possibly indicating that there was no change in the Veteran’s hearing since his pre-induction examination, instead of numbers indicating the Veteran’s specific pure tone thresholds in decibels at that time. The Veteran’s November 1967 separation examination also contains a whisper test of 15/15 and a notation that there were no significant findings. Further review of the Veteran’s post-service VA medical treatment records reflects that the Veteran first complained of bilateral hearing loss in June 2011, many years after his discharge from active duty. The Veteran was diagnosed with bilateral sensorineural hearing loss at that time. This approximate 30-year period between active service and the first indication and diagnosis of sensorineural bilateral hearing loss is a factor which weighs quite heavily against a finding of service incurrence, including by continuous symptoms since service from which incurrence during active service would otherwise be presumed. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). In March 2015, the Veteran was afforded a VA examination. The March 2015 examiner confirmed the Veteran’s diagnosis of sensorineural bilateral hearing loss and opined that the Veteran’s sensorineural bilateral hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner provided the rationale that review of the Veteran’s STRs, his entrance audiogram showed normal hearing and his discharge audiogram showed normal hearing, with no change in thresholds. The examiner additionally provided the rationale that the Veteran reported 34 years of employment at a car dealership in various jobs in vehicle assembly plants and that the Veteran reported recreational firearm usage as a hunter. As previously mentioned, the Board remanded this matter in December 2019, finding the March 2015 examination to be inadequate as the examiner failed to adequately address direct service connection considering the potentially unclear separation examination that did not contain specific audiometric readings. Additionally, the examiner mentions that the Veteran’s tinnitus and bilateral hearing loss are connected to each other and mentions that the delayed onset of tinnitus symptoms (first noted by the Veteran after service in 1969) is an indication that there is no connection to his military service. However, the examiner did not provide an adequate rationale to support this opinion, or otherwise indicate whether the type of hearing loss or tinnitus currently found might be the type one would see in cases of acoustic trauma, specifically since the Veteran reports recalling tinnitus symptoms only a year following his military service and the examiner opined that the Veteran’s tinnitus is likely related to hearing loss. He also reported noticing hearing loss in or right after service, and these comments have not been considered. Pursuant to the Board remand, the Veteran was afforded a VA examination in September 2020. The September 2020 examiner provided a negative nexus opinion and provided the rationale that there is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. The examiner acknowledges the Veteran’s noise exposure in service, and further provided that auditory damage and hearing loss are not conceded based on noise alone The Veteran did not complain of hearing loss and he was no diagnosed with sensorineural bilateral hearing loss until 2011, the evidence does not reflect chronic symptoms of hearing loss in service or within one year of service separation or continuous symptoms of hearing loss since service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. §§ 3.303(b) and 3.309(a) is not warranted. Based on the evidence of record, the Board finds that the Veteran may have been exposed to excessive levels of noise during active service, and such exposure would be of a high probability given his MOS, and as such, excessive noise exposure is conceded. However, for the reasons stated above and based on the objective medical evidence, the Board finds the Veteran’s current disability of sensorineural bilateral hearing loss is neither caused by an event, injury, or illness during active service, nor is it etiologically related to it. Additionally, the Board finds that sensorineural bilateral hearing loss did not manifest to a compensable degree within one year of separation from active service. Consequently, service connection for bilateral hearing loss, presumptive or otherwise, has not been established. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claims, the doctrine is not applicable, and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.