Citation Nr: 21068113 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 19-10 201 DATE: November 9, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. Entitlement to an initial disability rating of 70 percent for post-traumatic stress disorder (PTSD) is granted. REMANDED Service connection for paroxysmal atrial fibrillation is remanded. Service connection for anemia with bleeding ulcers is remanded. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not have its onset in service, nor is it related to service. 2. The Veteran's tinnitus had its onset in service. 3. The Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas for the entire claim period. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1154, 5107; 38 C.F.R. § 3.102. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1154, 5107; 38 C.F.R. § 3.102. 3. The criteria for entitlement to an initial disability rating of 70 percent for PTSD are met. 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2017 and April 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The matter has previously been before the Board, most recently in January 2021. At that time, the Board denied the Veteran's claims for service connection for bilateral hearing loss, tinnitus, a heart condition and anemia, and denied the claim for an increased initial disability rating for the Veteran's PTSD. The Veteran appealed to the Court of Appeals of Veterans Claims (CAVC). In June 2021, CAVC remanded the claims pursuant to a Joint Motion for Remand (JMR) entered into between the Veteran and VA. SERVICE CONNECTION FOR BILATERAL HEARING LOSS AND TINNITUS Pursuant to the terms of the JMR, the claims for service connection for bilateral hearing loss and tinnitus were remanded in order for the Board to apply the combat presumption set forth in 38 U.S.C. § 1154(b) in adjudicating the claims. The record establishes the Veteran's participation in combat. Pursuant to § 1154(b), "the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran." Section 1154(b) sets forth "a three step, sequential analysis that must be undertaken when a combat veteran seeks benefits under the method or proof provided by statute." Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996). First, "it must be determined whether the veteran has proffered satisfactory lay or other evidence" of the in-service incurrence or aggravation of an injury or disease. Id. at 393. Next, it must be determined whether the proffered evidence is consistent with the circumstances, conditions, or hardships of such service." Id. Finally, if both inquiries are met, the Secretary must accept the veteran's evidence as "sufficient proof" of the incurrence or an injury or disease, even if no official record of such incurrence exists. Id. This is a factual presumption, however, that may be rebutted. See id. The third step in that analysis is whether the Secretary has met its burden of rebutting the presumption with "clear and convincing evidence to the contrary." Id. Section 1154(b) does not eliminate the need for evidence of a current disability or nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of in-service incurrence or aggravation of a disease or injury. See id. at 392. "A veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty. " Reeves v. Shinseki, 682 F.3D 988, 999 n. 9 (Fed. Cir. 2012). In the case of hearing loss, a combat veteran may prove a causal relationship with proof that the disability incurred in service was a chronic condition that persisted in the years following active duty. Id. at 1000. Pursuant to the terms of the JMR, the Board failed to address the initial question of whether the Veteran suffered permanent hearing loss and tinnitus from the date of service. The Board finds that, after review of the credible lay and medical evidence, the Veteran did not suffer permanent hearing loss from the date of service, but did suffer permanent tinnitus. Accordingly, the claim for service connection for bilateral hearing loss is denied, and the claim for service connection for tinnitus is granted. Bilateral Hearing Loss A close review of the Veteran's statements reflect that he has never asserted that he experienced permanent hearing loss in service. Rather, he specifically stated in his July 2020 declaration that, although he would lose the ability to hear for "a couple minutes" after exposure to gunfire and rockets, his "hearing would return." The Veteran also described an incident when a charge detonated near him, "temporarily" deafening his right ear. Indeed, the Veteran's representative also described the Veteran as experiencing "temporary hearing loss" during service. This lay evidence is supported by the medical evidence, including the Veteran's separation examination, which showed no hearing loss at the time of his discharge from active service. Thus, in addressing the initial question of permanency as noted in the JMR, the Board finds no evidence on which to conclude that the Veteran experienced permanent hearing loss from the date of service. The Board also finds that the June 2020 VA examiner properly considered evidence of an in-service injury. The examiner acknowledged the Veteran's report of exposure to noise from helicopters, loud gunfire and explosions, but noted that there was no other evidence suggesting that the Veteran's hearing loss was sustained during service. The combat presumption does not state that a veteran is entitled to an award of service connection for a disease or injury simply because the Veteran engaged in combat. Rather, the regulation aids a veteran by relaxing the evidentiary requirements for determining what happened in service. The Veteran must still establish a claim by competent evidence showing a current disability and nexus between that disability and service. See Gregory v. Brown. 8 Vet. App. 563, 567 (1996). As explained in the January 2021 Board decision, the Veteran did not establish a nexus between his hearing loss and service. The Board adopts and incorporates the findings of the January 2021 Board decision with respect to the claim for service connection for hearing loss, as supplemented by the findings herein regarding the application of the combat presumption. The Veteran's claim for service connection for hearing loss is denied. As the preponderance of evidence is against the Veteran's claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Tinnitus The Board finds that the Veteran's clarifying statements in his July 2020 affidavit are sufficient to establish that he sustained permanent tinnitus in service. The Board finds those statements competent and credible, and sufficient to establish the existence of tinnitus since service. Specifically, the Veteran stated that his ears would ring after exposure to gunfire and explosions and described specific instances when he experienced tinnitus. The Veteran stated that he has had tinnitus since service but related that it is not as noticeable when he is busy or in a louder environment. He also stated that his tinnitus became more noticeable and bothersome after his retirement due to his quieter lifestyle. The Board acknowledges that the Veteran previously reported that his tinnitus did not start until after service, but finds the explanation that it was intermittent and less noticeable prior to his retirement credible and entitled to probative weight. The initial question of whether the Veteran sustained permanent tinnitus in service identified in the JMR is thus answered in the affirmative and, resolving reasonable doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 U.S.C. §§ 1154(b); 5107(b); 38 C.F.R. § 3.102. Entitlement to an initial disability rating of 70 percent for PTSD Pursuant to the terms of the JMR, the Board did not adequately discuss the Veteran's symptomatology in determining that he was not entitled to an initial 70 percent disability rating for his PTSD. The JMR specifically identified the symptoms set forth in the Veteran's "April 25, 2016 (sic) handwritten statement" and March 2019 affidavit, the August 2019 statement from the Veteran's spouse and VA treatment records from June 2016. Upon review of these statements and records, the Board finds that the Veteran's PTSD more closely approximates the criteria for a 70 percent rating, and the claim for an increased initial rating is granted. The Veteran has an initial 50 percent rating for his PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. That code provides a 50 percent rating for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such symptoms as: suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a worklike setting), inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, memory loss for names of close relatives, own occupation or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity and duration of psychiatric symptoms, the length of remissions and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase "such symptoms as" followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The January 2021 Board decision found that the Veteran experienced significant occupational impairment, but concluded that his social functioning was fair, and although it was somewhat negatively impacted, it did not rise to the level of a 70 percent rating. The Board incorporates the findings of the Veteran's deficiencies in the areas of work and, based on the lay statements from the Veteran and his wife, finds that the deficiencies in the areas of family and mood more closely approximate the criteria for a 70 percent rating. While the JMR referenced an April 25, 2016 handwritten statement from the Veteran, the record reflects that the statement was received April 25, 2018. In that statement, the Veteran noted that he suffered nightmares since returning from Vietnam and has rarely been able to sleep an entire night. The Veteran reported that his heart would race during his nightmares, leading him to fear he was having heart attacks. The Veteran also described symptoms of hypervigilance, being constantly on guard and "consistently in panic mode." The Veteran described his nightmares as flashbacks of his exposure to combat in Vietnam, with the memories remaining intense despite the passage of time. The Veteran related that his symptoms were overwhelming, leaving him with "very little reason to go on." The Veteran stated in his March 2019 affidavit that he has experienced daily flashbacks over the years that are extremely intrusive, and noted that he has struggled with debilitating depression and anxiety. The Veteran also noted that he isolated himself from people as much as possible. The Veteran noted that his primary relationship with his wife was strained due to his withdrawal, depression, irritability and unpredictable anger outbursts. The Veteran described having intense and sudden rage episodes and extreme suspiciousness of others. The Veteran also described having constant feeling of anxiety and worry that he would have a panic attack, leading to obsessional rituals that were somewhat lessened by medication. The Veteran also reiterated the constant nightmares about service that left him feeling panicked. The statement from the Veteran's wife described the Veteran's continuing nightmares since he left service, his weekly and sometimes daily panic attacks and his extreme suspiciousness and paranoia. The Veteran's wife also noted that the Veteran was depressed and often woke up from his nightmares panicked and with an increased heart rate. The Veteran's June 2016 VA treatment notes reflect that his symptomatology included nightmares and "intrusive memories, emotional lability with feelings of sadness and horror over his traumatic experiences." The Veteran and his wife are competent to describe the Veteran's symptoms and the Board finds their descriptions of the Veteran's nightmares, depression, anxiety, hypervigilance, obsessional rituals, irritability and intense anger outbursts credible. The record also reflects that the Veteran expressed suicidal thoughts and a desire not to wake up. These symptoms meet the criteria of a 70 percent rating as the competent lay evidence reflects that the Veteran experienced symptoms including suicidal thoughts, obsessional rituals, near-continuous panic or depression, unprovoked irritability, difficulty in adapting to stressful circumstances and an inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Based on the severity and frequency of these symptoms as described by the Veteran and his wife, the Board finds that his PTSD more closely approximated the criteria for a 70 percent disability rating throughout the claim period. The Board also finds that the record does not reflect total social and occupational impairment so as to warrant a higher rating at any point during the claim period. The Veteran did not describe symptoms such as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior; a persistent danger of hurting himself or others; an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name, or any other symptoms of similar severity, frequency, and duration. 38 C.F.R. § 4.130, Diagnostic Code 9411. As the record does not support a finding of total occupational and social impairment, a 100 percent disability rating is not warranted. REASONS FOR REMAND Service connection for paroxysmal atrial fibrillation is remanded. Pursuant to the terms of the JMR, remand of the Veteran's claim for service connection for paroxysmal atrial fibrillation is required because the Board did not ensure compliance with the remand directives of the September 2019 Board remand, as required by Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the September 2019 Board remand required a new VA examination and medical opinion based on evidence linking a possible heart condition to a service-connected disability. Pursuant to the terms of the JMR, the June 2020 VA examination and medical opinion did not provide a rationale for the medical opinion offered, did not address whether the Veteran had a heart condition etiologically linked to or aggravated by a service-connected disability and did not address the Veteran's statement that he experienced a racing heart when he has nightmares as required by the remand directives of the September 2019 Board decision. Accordingly, remand for a new VA examination and opinion is warranted. Service connection for anemia with bleeding ulcers is remanded. The Veteran contends that his anemia was caused by his gastric bypass surgery, which was conducted in order to address his service-connected diabetes. Pursuant to the terms of the JMR, the Board failed to adequately address whether the gastric bypass surgery was performed to address the Veteran's service-connected diabetes. Specifically, CAVC concluded in the JMR that remand was required to review the Veteran's lay statements regarding his gastric bypass, along with the November 2011 VA examination and October 2011 VA treatment records suggesting that the Veteran's gastric bypass was related to his diabetes. While the Veteran is competent to relate a contemporaneous medical diagnosis, the Board finds the referenced statements of the VA examiner and the VA treatment records ambiguous as to whether the Veteran's gastric bypass was performed to address his diabetes. Accordingly, remand is warranted for a new VA medical opinion addressing whether the Veteran's gastric bypass was performed to address his service-connected diabetes. The matters are REMANDED for the following action: 1. Obtain an updated VA examination and medical opinion to ascertain the nature and etiology of the Veteran's claimed heart condition. The claims file, including the JMR and a copy of this remand, must be reviewed by the examiner. Following review of the file, the examiner should address: 2. Whether the Veteran has a heart condition which is at least as likely as not caused by a service-connected disability, to include diabetes mellitus, hypertension and PTSD? The examiner should specifically address the Veteran's reports of experiencing a racing heart when he has nightmares. 3. If not caused by a service-connected disability, is it at least as likely as not that the Veteran's heart condition has been worsened beyond normal progression by a service-connected disability, to include diabetes mellitus, hypertension and PTSD? Please explain why or why not. In proffering this opinion, the examiner must determine whether a service-connected disability caused any incremental increase, even transient, in his heart condition, regardless of permanence. 4. If the examiner finds that the Veteran's heart condition has been worsened beyond normal progression (aggravated) by a service-connected disability, please attempt to quantify the degree of aggravation beyond the baseline level of the heart condition that is attributable to the service-connected disability. 5. Forward the claims file to an appropriate VA clinician to provide a medical opinion addressing the nature and etiology of the Veteran's anemia. The claims file, including the JMR and a copy of this remand, must be reviewed by the examiner. Following review of the file, the examiner should address: 6. Whether the Veteran's anemia is at least as likely as not caused by his service-connected diabetes mellitus type II? The examiner should specifically address the October 2011 VA treatment records referenced in the JMR, the statement of the November 2011 VA examiner referenced in the JMR and the Veteran's lay statements that he was told that his gastric bypass was performed to address his service-connected diabetes. 7. If not caused by his service-connected diabetes, is it at least as likely as not that the Veteran's anemia has been worsened beyond normal progression by his service-connected diabetes mellitus type II? Please explain why or why not. In proffering this opinion, the examiner must determine whether the service-connected disability caused any incremental increase, even transient, in the Veteran's anemia, regardless of permanence. 8. If the examiner finds that the Veteran's anemia has been worsened beyond normal progression (aggravated) by a service-connected disability, please attempt to quantify the degree of aggravation beyond the baseline level of the condition that is attributable to the service-connected disability. All findings and conclusions should be supported with a complete rationale based on consideration of the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge in general or of the examiner. If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts required), the RO should develop the claim to the extent necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.