Citation Nr: 21062536 Decision Date: 10/08/21 Archive Date: 10/07/21 DOCKET NO. 17-15 372 DATE: October 8, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for tinnitus also is granted. FINDINGS OF FACT 1. It is just as likely as not the Veteran has PTSD owing to military sexual trauma (MST). 2. It also is just as likely as not his tinnitus is from exposure to hazardously loud noise during his service and consequent injury (acoustic trauma). CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria are met for his entitlement to service connection for PTSD. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. 2. Resolving all reasonable doubt in his favor, the criteria also are met for his entitlement to service connection for tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1951 to September 1955. This appeal to the Board of Veterans' Appeals (Board) is from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a "virtual" teleconference hearing in October 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. His appeal has been advanced on the docket (AOD) because of his age. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). The Veteran has several mental health disorder diagnoses including, notably, PTSD owing to MST, but also of anxiety disorder not otherwise specified (NOS). In determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Given that holding in Clemons and the uncertainty of the Veteran's specific diagnosis, or whether some versus all are warranted, the Board has expanded his claim to include all diagnoses to date. This will provide the most favorable review of his claim in keeping with the Court's holding in Clemons. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from service, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of a relevant injury or disease, and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Entitlement to service connection for an acquired psychiatric disorder, including PTSD The Veteran contends that he has PTSD owing to MST in 1951, so during his initial time in service. Establishing service connection for PTSD, in particular, requires: (1) medical evidence diagnosing the condition in accordance with the requirements of 38 C.F.R. § 4.125(a) (meaning in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM)); (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). Records confirm the Veteran has the required diagnosis of PTSD since indicated in his VA treatment records dated in January 2014. On a VA Mental Health Note dated in December 2012, he cited MST as the stressor precipitating this diagnosis. The VA examiner diagnosed anxiety disorder, NOS, but, as mentioned, in January 2014, the diagnosis instead was PTSD related to MST. And, while the Board acknowledges the VA examiner in January 2016 clarified the PTSD diagnosis in actuality was a "rule-out diagnosis," no explanation was given. Since the Veteran's recount of the incident in question has been consistent, the evidence on the whole provides the required indication he has PTSD because of the MST alleged. The Board, consequently, is resolving all reasonable doubt in his favor and granting, rather than denying, his claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). If, as here, a PTSD claim is based on in-service personal assault, so including MST, evidence from sources other than the Veteran's service records may corroborate his account of the stressor incident. Examples of such evidence include, but are 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). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). See YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). The Court clarified in YR and Patton that the general rule discussed in Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996), that after-the-fact medical nexus evidence cannot establish the occurrence of the claimed in-service stressor, does not apply to PTSD claims based on personal/sexual assault. See also Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (reiterating that, when a claim is predicated on personal/sexual assault, a post-service examination of a Veteran may be used to establish the occurrence of the claimed stressor). Courts have recognized that, since sexual assault is an extremely personal and sensitive issue, many incidents are not officially reported until years later. See Menegassi at 1383; see also Bradford v. Nicholson, 20 Vet. App. 200 (2006). Turning now to the relevant evidence in this case at hand, the Veteran as mentioned contends that he was assaulted in 1951. Most of his military personnel records were destroyed in the 1973 fire at the National Personnel Records Center (NPRC), which was a military records repository. In this circumstance the Board has a heightened obligation to explain its findings and conclusions and to carefully consider applying the benefit-of-the-doubt rule. See, e.g., Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). See also Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare, 1 Vet. App. at 367). The Board must also point out, however, that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367). Here, though, the Veteran is competent to report the events of which he has personal knowledge. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Furthermore, the Veteran credibly testified about the incident in service and why he did not report it during his service. See October 2020 Board Hearing Transcript at page 23. His spouse added, to mention or report the MST during that time would have been dangerous. Id. at 25. Additionally, the only competent and credible, therefore probative, medical evidence has associated the Veteran's PTSD with the MST in service. And there is no evidence to the contrary having more probative value. As such, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria are met for his entitlement to service connection for an acquired psychiatric disorder including especially for his PTSD. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an "as likely as not" proposition, which in this instance it is for the reasons and bases discussed. 2. Entitlement to service connection for tinnitus The Veteran contends that he also suffers from tinnitus owing to his military service. Specifically, he was a cook in service and asserts to constantly being exposed to loud noise from jet airplanes on the flight line. See his March 2017 Substantive Appeal to the Board (on VA Form 9). During his more recent October 2020 hearing before this Board, he explained there was no ear protection, per se, when he served in the military, and that he was around airplanes when pre-flighting (i.e., revving up the engines to ensure nothing was wrong with the plane, which included very loud jet aircraft) since his barracks was right next to where that happened. He added there also was a lot of noise when he worked in the kitchen from big pots and pans and when training on the rifle range with an M-1. He said he first noticed tinnitus during the last/latter part of his service (in 3rd year). He indicated that it was not that bad, initially, would come and go, so intermittent, but that it has gotten progressively worse during the many years since his service, including now especially when does not have his hearing aids in that he got from the West Los Angeles VA Medical Center. He testified that he now experiences this condition every day. He admits not complaining of it while in service but says that was because he just "dealt with it" until it more recently was diagnosed at the West Los Angeles VA Medical Center. As previously mentioned, most of the Veteran's military personnel records were lost in the fire at the NPRC. Thus, the records of any hearing evaluation he may have had during or when separating from service are unavailable. But, by the same token, he readily conceded during his hearing that he did not complain of tinnitus during his service, so his STRs would not tend to show he had this disease during his service, even if they were available for consideration. Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Because tinnitus is "subjective," its existence is generally determined by whether the claimant claims to experience it. Indeed, for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). For this reason, the Board finds that the Veteran is competent to report experiencing ringing in his ears, in other words that he has tinnitus. Moreover, his assertion of noise exposure during his service which not necessarily is typical to the military occupational specialty (MOS) of cook, takes on an added dimension when in proximity to the flight line. Accordingly, the Board finds his competent statements regarding his tinnitus also are credible and, therefore, ultimately probative. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Additionally, the Veteran has credibly testified that he initially began experiencing tinnitus in service and has continued to during the many years since, progressively worsening. There are no medical opinions or other probative evidence against this claim, especially any tending to refute the onset of tinnitus during his service and continuation of it since. Accordingly, service connection for tinnitus is granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.