Citation Nr: 21067216 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-35 971A DATE: November 3, 2021 ORDER Entitlement to service connection for left ear hearing loss disability is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) with secondary major depressive disorder is granted. REMANDED Entitlement to an initial higher rating for the now service-connected bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the diagnosed left ear hearing loss disability is related to acoustic trauma he sustained during active duty service. 2. The evidence is at least in equipoise as to whether the Veteran has a current diagnosis of PTSD that is related to his fear of hostile military or terrorist activity. 3. The medical evidence relates the Veteran's major depressive disorder to his PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ear hearing loss disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 2. Resolving any reasonable doubt in the Veteran's favor, the criteria to establish service connection for PTSD with major depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1986 to October 1993. As pertinent here, in May 2009, the Veteran filed a claim for service connection for bilateral hearing loss. After a July 2009 VA audiology examination, by a November 2009 rating decision, the RO denied the claim, finding that the examination was inconsistent, and no medical opinion was rendered. In December 2009, the Veteran requested a reconsideration of the denial. In the interim, in January 2010, the Veteran filed a claim for an acquired psychiatric disorder. In January 2010, the Veteran submitted a private audiogram showing a diagnosis of bilateral hearing loss. After a July 2010 VA audiology examination, in a September 2010 rating decision, the RO granted service connection for right ear hearing loss and tinnitus but denied service connection for left ear hearing loss. The decision also denied the Veteran's claim for an acquired psychiatric disorder. The Veteran was notified of the decision on September 30, 2010. In August 2011, he submitted medical records showing hospitalization for PTSD along with a new claim for PTSD. On September 14, 2011, he submitted informal claims for an increased rating for right ear hearing loss and service connection for left ear hearing loss. On September 22, 2011, within a year of the September 2010 rating decision, the Veteran underwent another VA audiology examination. Despite this new and material evidence received within one year of the last final denial of the claim, the RO denied reopening the claim in a November 2011 rating decision. The RO also reopened and denied the claim for service connection for an acquired psychiatric disorder, and increased the rating for a right ear disability to 10 percent. In August 2012, the Veteran submitted a timely notice of disagreement (NOD), a statement of the case (SOC) was issued in June 2016, and the Veteran perfected his appeal in August 2016. In the interim, additional military personnel records were received that show that he served in an imminent danger pay area (Saudi Arabia) beginning in September 1990 (no end date noted). In March 2017, the Veteran testified before a Veterans Law Judge (VLJ). For reasons unclear to the Board, the case remained pending and was not returned to that VLJ for review. Thereafter, in February 2021, the Veteran was scheduled for another Board hearing before a different VLJ, who heard the same four issues discussed herein. The law requires that the VLJ who conducts a hearing in an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. Additionally, when two hearings have been held by different VLJs concerning the same claims, the law also requires that the Board assign a third VLJ to decide the claims because a proceeding before the Board may be assigned either to an individual VLJ "or to a panel of not less than three members of the Board." 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3. Therefore, in June 2021, the Veteran was sent a letter notifying him of the option of having an additional hearing before a third VLJ who would be assigned to the panel to decide this appeal. In July 2021, in response, the Veteran waived his right to appear at an additional hearing before a third VLJ. Therefore, and in accordance with Arneson v. Shinseki, 24 Vet. App. 379 (2011), this decision will be signed by a panel of three VLJs, two of which took testimony in this case. Lastly, the Board finds that the November 2009 and September 2010 rating decisions did not become final, and as such, new and material evidence is not needed to reopen the hearing loss claim. There is no prejudice to the Veteran in deciding the left ear hearing loss claim on the merits as the outcome is fully favorable. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Service Connection for Left Ear Hearing Loss 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, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Sensorineural hearing loss is considered a "chronic" organic disease of the nervous system under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic' disease became manifest to a degree of 10 percent within 1 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. 38 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran in this case asserts that he has a left ear hearing loss disability that is related to his exposure to hazardous noise in service. For VA compensation purposes, impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran is currently diagnosed with a left ear hearing loss disability. See, e.g., September 2011 VA audiology examination report. The Board next finds that the second element of in-service incurrence has been met. Indeed, the Veteran's exposure to acoustic trauma in service has already been established as he is already in receipt of service connection for right ear hearing loss and tinnitus as secondary to acoustic trauma he sustained in service. On review, the Board finds that the weight of the evidence is at least in approximate balance regarding whether the left ear hearing loss had its onset during service. In a July 2010 VA medical opinion, the examiner stated that the left ear hearing loss was less likely than not related to service because a review of the record showed no evidence of a temporary or permanent shift in hearing, and the Veteran had some occupational noise exposure. A June 2009 VA audiology consultation noted that the Veteran had hearing loss since his military service with progressive decline. During the September 2011 VA examination, the audiologist checked the "yes" box for whether the Veteran's hearing loss was at least as likely as not caused by or a result of an event in military service. The examiner indicated that hearing loss had already been established previously, which suggests that the examiner was under the impression that both ears were service connected as a result of noise exposure sustained in service. On review, the Board assigns a higher probative weight to the lay and medical evidence that suggested left ear hearing loss had its onset during service. In so finding the Board assigns little to no probative weight to the July 2010 examiner's opinion. While the Board acknowledges that a significant threshold shift of 15 decibels was not shown in the left ear at separation, contrary to the examiner's indication that there was no temporary or permanent threshold shift, there was a 10-decibel shift in the 1000 Hertz frequency and a 5-decibel shift in the 2000 and 3000 Hertz. In other words, while the shift may not be regarded as significant, it was present. Additionally, even the July 2010 examiner who provided a negative nexus opinion indicated that during service the Veteran was exposed to field artillery and an explosion in Saudi Arabia without the use of hearing protection devices; however, the examiner specifically noted that in his occupation as a shipyard worker and supervisor for seven years, the Veteran used hearing protection devices regularly and had no recreational noise exposure. Despite this, the examiner considered both exposures as equal. In other words, the 2010 examiner ignored some threshold shifts in the left ear or the fact that the noise exposure in service was without hearing protection contrary to the Veteran's civilian noise exposure. Thus, in light of the current diagnoses of left ear hearing loss disability for VA purposes, the conceded in-service noise exposure, and the competent and credible evidence of continuity of symptomatology since service along with lack of evidence to support noise exposure post-service without the use of hearing protection devices, the evidence is at least in equipoise. Accordingly, the criteria to establish service connection for left ear hearing loss are met, and the claim is granted. Service Connection for PTSD Service connection for a psychiatric disorder, to include PTSD requires the following three elements: (1) a current medical diagnosis of a psychiatric disorder, to include PTSD, (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). A veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor if : (1) The claimed stressor is related to fear of hostile military or terrorist activity; (2) The claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3). In adjudicating a claim for service connection for a psychiatric disorder, to include PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id. The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of a psychiatric disorder, to include PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. Analysis The Veteran asserts that he has a diagnosis of PTSD that is related to his active-duty service in Saudi Arabia. Specifically, the Veteran reported that he was on a cargo that was hit by a mine explosion. In addition, he reported one incident of a missiles attack on the base in Saudi Arabia. The Board initially finds that the evidence is at least in equipoise as to whether the Veteran had exposure to hostile military and terrorist activity. The Veteran testified that, as part of his military occupational specialty as a radio/trainer operator, he was assigned to a combat unit/tank, which regularly placed him in the field. Although the Defense Personnel Records Information Retrieval System indicated that the Veteran's stressor could not have been verified based on his unit and assignment, his military personnel records specifically show, as indicated above, that he served in an imminent danger pay area in Saudi Arabia. His military occupational specialty is listed as a unit level communications maintainer. Further, both he and a fellow service member indicated that their unit was subjected to missile attacks. Lastly, it is noted that the Veteran is currently in receipt of service connection for chronic headaches, claimed to have resulted following his exposure to blasts that occurred while serving in Saudi Arabia. See also, February 2016 VA Consultation Note showing a diagnosis of cognitive communication deficit; and November 2018 DBQ showing an impression of a diagnosis of Major Cognitive-Neuro disorder due to TBI. The competent and credible lay reports along with the Veteran's receipt of imminent danger pay at the time provide adequate evidence to corroborate his reported stressor. The Board resolves any reasonable doubt and concludes that the Veteran had combat experience in Saudi Arabia. The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). Taken together, the Veteran's statements regarding his in-service onset of depressive/worry symptoms, the corroborating lay statement, and his combat experience satisfy the in-service injury or disease requirement. Therefore, the dispositive issue is whether the Veteran's claimed stressor is the one leading to a current diagnosis of PTSD. Turning to the evidence, at the time of separation from service in September 1993, the Veteran endorsed "frequent trouble sleeping," and "depression or excessive worry." Post-service VA treatment records beginning in 2009 show positive PTSD screens. In August 2011, the Veteran was admitted to the VA hospital for treatment of PTSD. At the time of treatment, he reported that he had PTSD symptoms shortly after discharge from active duty in 1993. In June 2012, the treating neuropsychologist attributed the Veteran's PTSD with depression and anxiety to the reported mine explosion during active-duty service. January 2014 mental health treatment records also attributed the PTSD to the reported explosion in Saudi Arabia. In August 2018, the Veteran underwent a PTSD compensation examination, at which time the examiner did not diagnose PTSD or any other mental disorder. The examiner essentially concluded that the Veteran's responses during this examination were not credible. However, the Board notes that the examiner's opinion did not address the Veteran's years of mental health treatment and prior diagnosis of PTSD, to include by a neuropsychologist, psychiatrists, and clinical psychologists at VA, and therefore the opinion is considered less-informed. Furthermore, the opinion does not appear to consider the cognitive deficiencies associated with the separately diagnosed TBI, which may have affected his responses. In support of his claim, the Veteran submitted a private November 2018 disability benefits questionnaire, in which Dr. J.L., a psychologist confirmed a diagnosis of combat-related PTSD with secondary major depressive disorder. The psychologist noted that his independent psychological evaluation was based on an in-person interview, as well as review of the Veteran's claims folder, to include his service treatment records, personnel records, medical treatment records, and lay statements. The psychologist concluded that based on all available documentation and the current examination, it was more likely than not that the Veteran suffered from PTSD and major depressive disorder due to reported in-service stressors. The Board assigns higher probative weight to the November 2018 private psychologist's opinion than to the August 2018 VA opinion. The August 2018 VA examiner simply dismissed the Veteran's claim for PTSD based on observations during this examination alone without referencing the years of treatment for and diagnosis of PTSD. Additionally, the August 2018 examiner did not address the reports of depression or excessive worry and trouble sleeping that were noted at separation. The Board finds the August 2018 VA opinion to have less probative value. On the contrary, the private examination/opinion is more consistent with the evidence of record showing years of diagnosis and treatment for PTSD, to include inpatient hospitalizations. In this regard, the November 2018 private psychologist reviewed the claims file and considered the Veteran's lay assertions regarding his mental health symptom history, which he is competent to report, as well as the years of mental health records, to include treatment for PTSD. The Board finds the opinion both adequate and highly probative. See Nieves-Rodriguez, 22 Vet. App. 295, 303-304 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). As noted above, whether a stressor is of sufficient gravity to cause or support a diagnosis of a psychiatric disorder, to include PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. Regarding whether the evidence establishes the occurrence of the stressor in question, the Board as the factfinder finds that the Veteran's reports are consistent with places, types, and circumstances of his service in Saudi Arabia. Based on the foregoing, the Board as a finder of fact determines that the evidence is at least in approximate balance as to whether the Veteran has a current diagnosis of PTSD supported by an adequate stressor. This finding is based on his military records supporting that he had combat experience, the Veteran's mental health complaints at service separation, the post-service treatment records, the lay evidence, and the highly probative November 2018 psychologist's opinion. With resolution of any reasonable doubt in the Veteran's favor, the Board finds that the criteria to establish service connection for PTSD have been met, and service connection is therefore warranted. Lastly, the medical evidence shows a diagnosis of major depressive disorder as secondary to PTSD. Accordingly, the Board finds that secondary service connection for major depressive disorder is also warranted. REASONS FOR REMAND The Veteran asserts that his right ear hearing loss has worsened since last examined for VA compensation purposes. As the Board has granted herein service connection for left ear hearing loss, a remand is necessary to obtain an updated audiology examination and then adjudicate the issue of an initial rating for the now service-connected bilateral hearing loss as well as the intertwined claim for a TDIU. The matters are REMANDED for the following action: 1. Implement the Board's decision herein granting service connection for a left ear disability and assign an initial rating for bilateral hearing loss from the date of claim on May 20, 2009. 2. Provide the Veteran with a VA audiology examination to determine the current severity of his bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a pure tone audiometry test. The examiner is requested to review all pertinent records associated with the claims file. 3. Implement the Board's decision granting service connection for PTSD with secondary major depressive disorder. 4. Thereafter, conduct any other development deemed necessary and readjudicate the issue of entitlement to a TDIU and initial rating for a bilateral hearing loss disability. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Tanya A. Smith Veterans Law Judge Board of Veterans' Appeals SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.