Citation Nr: 21068234 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-40 072A DATE: November 9, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as unspecified trauma and stressor related disorder, is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's acquired psychiatric disorder, diagnosed as unspecified trauma and stressor related disorder, is related to an in-service injury. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder, diagnosed as unspecified trauma and stressor related disorder, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to September 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for anxiety, depression, and posttraumatic stress disorder (PTSD). This case also comes before the Board from a January 2017 rating decision which denied service connection for bilateral hearing loss. In April 2014 the Veteran filed a notice of disagreement (NOD) as to the Veteran's depression. In January 2017 the Veteran filed a NOD as to the Veteran's bilateral hearing loss. In August 2017 the RO issued a statement of the case (SOC) and in August 2017 the Veteran filed a substantive appeal (via VA Form 9). In November 2019, the Board remanded the claim for additional development. As the benefit sought is being granted in full, consideration of whether the agency of original jurisdiction complied with the Board's remand instructions is unnecessary. As a final preliminary matter, in Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), the Court held that a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. The claim has been recharacterized for the reasons indicated below. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Acquired psychiatric disorder, diagnosed as unspecified trauma and stressor related disorder The Veteran has been diagnosed with various psychiatric disabilities. A July 2011 private psychiatrist diagnosed the Veteran with major depressive disorder, generalized anxiety disorder, and depression. A November 2011 private psychologist diagnosed the Veteran with adjustment disorder with mixed emotional features. In a May 2013 letter, a Vet Center psychologist diagnosed the Veteran with acute PTSD. A July 2013 VA psychologist diagnosed the Veteran with alcohol dependence in sustained full remission and personality disorder not otherwise specified. A November 2018 VA psychologist diagnosed the Veteran with persistent depressive disorder, cluster B personality disorder, and unspecified trauma and stressor-related disorder. Thus, a current disability has been demonstrated. In a May 2012 Statement in Support of Claim for service connection for PTSD (VA Form 21-0781a) the Veteran stated that knowledge of her husband's infidelity was used by her fellow soldiers to harass and insult her. The Veteran stated that they created an intimidating, hostile, and offensive work environment. In a July 2012 letter, the Veteran stated that following her ectopic pregnancy she was told she would not be able to bear children which caused her to go into a crisis. In a March 2014 VA Form 21-0781a, the Veteran further stated that her ectopic pregnancy caused her many sleepless and stressful nights. The Veteran also stated that her contraction of herpes caused her anxiety, stress, and distrust of her husband. During a July 2017 hearing with a DRO the Veteran testified that she was harassed in the military which led her to drinking alcohol and taking drugs. Further, in a September 2017 VA Form 21-0781a the Veteran stated that while in basic training she was assaulted and raped by two servicemen and was called a racial epithet. In a June 2018 VA Form 21-0781a the Veteran stated that she has kept this sexual assault a secret for decades. A May 1981 service treatment record (STR) indicates that the Veteran underwent a laparoscopy for an ectopic pregnancy. The Veteran has consistently submitted lay statements about the impact her ectopic pregnancy, the in-service harassment she experienced, and her military sexual assault which ultimately caused the symptoms associated with her diagnosed unspecified trauma and stressor related disorder. As a lay person, the Veteran is competent to provide evidence of observable events and report the onset of depressive symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Based on the above, the Board finds the Veteran's statements along with her STRs corroborate the reported in-service harassment. Thus, the in-service injury requirement has been met. The Board notes that there is no requirement of a corroborated stressor to establish service connection for a psychiatric disorder other than PTSD. The remaining question is whether the Veteran's unspecified trauma and stressor related disorder is related to her in-service injury. A February 2020 VA psychologist opined that the Veteran's unspecified trauma and stressor related disorder is more likely than not related to an assault during her service. The VA psychologist explained that the Veteran's reported intrusive symptoms of nightmares about being sexually assaulted is consistent with her contention. As the VA psychologist explained the reasons for his conclusion based on an accurate characterization of the evidence of record. Therefore, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Although there is nothing in the Veteran's personnel and service treatment records (STRs) that specifically document a sexual assault during her active service, cases involving allegations of personal assault falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events about which a veteran complains. See Patton v. West, 12 Vet. App. 272, 281 (1999). The Veteran has consistently maintained that she suffered a sexual assault in basic training while in service, including during mental health therapy with VA psychologists. There are negative nexus opinions in the Veteran's record regarding whether her acquired psychiatric disabilities are related to service. However, in the November 2019 decision the Board determined that they did not adequately address pertinent treatment records in the Veteran's claims file. Therefore, no further discussion of these opinions is required. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's acquired psychiatric disorder, diagnosed as unspecified trauma and stressor related disorder, is related to an in-service assault. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for an acquired psychiatric disorder, diagnosed as unspecified trauma and stressor related disorder, is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Although the Veteran contends that she experiences PTSD, there are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). In the present case, there is no evidence that there are symptoms of PTSD that are distinguishable from her diagnosed unspecified trauma and stressor related disorder. Consequently, the Veteran will be compensated for all of her psychiatric symptoms and the Board need not specifically address the issue of entitlement to service connection for PTSD. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (Board erred in failing to discuss or assess the separate effects of claimant's service-connected and non-service-connected disabilities and whether, standing alone, his service-connected disabilities warranted an award); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when effects of service-connected and non-service-connected disabilities cannot be separated, reasonable doubt requires that the signs and symptoms should be attributed to the service-connected disabilities). REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. Hearing loss disability is defined for VA compensation purposes using audiologic testing involving pure-tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. On the February 2020 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 45 40 45 LEFT 50 55 50 55 50 Maryland CNC speech recognition scores were 90 percent in the right ear and 90 percent in the left ear. Therefore, the evidence of record establishes that the Veteran currently has bilateral hearing loss under VA regulations. 38 C.F.R. § 3.385. Thus, a current disability has been demonstrated. The Veteran contends her bilateral hearing loss is due to exposure to hazardous noise while on active duty. Specifically, at a July 2017 hearing with a decision review officer (DRO) the Veteran testified that she was a drill instructor and was exposed to M16s, grenade launches, and bazookas while wearing "minor little earplugs." The Veteran's STRs reveal that she was a drill instructor and was exposed to noise from firings of a personal weapon and field artillery weapons. Therefore, the Veteran's claimed noise exposure is consistent with the places, types, and circumstances of service, and in-service noise exposure is established. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The remaining question is whether a nexus exists between the Veteran's current bilateral hearing loss and his in-service acoustic trauma. A February 2020 VA audiologist opined that the Veteran's bilateral hearing loss is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA audiologist explained that the Veteran's military occupational specialty (MOS) had a low probability of exposure to hazardous noise even though she was a drill instructor for two years. The VA audiologist noted that there was no separation examination report which measured the Veteran's hearing loss and pointed to the March 2013 VA examination report in which hearing loss for VA purposes was not found. Although the VA audiologist rendered the opinion that the Veteran's current bilateral hearing loss is not related to service, it was based largely on the absence of in-service evidence of bilateral hearing loss and is afforded no probative value. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability); 38 C.F.R. § 3.303(d) (service connection is warranted in some circumstances for a disease first diagnosed after service). In light of the above, the Board finds the examiner's opinion is inadequate and another VA medical opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: Request an opinion from an audiologist or other health care professional to determine the etiology of her bilateral hearing loss. The VA audiologist must opine whether the Veteran's bilateral hearing loss is at least as likely as not (at least a 50 percent probability) related to an in-service injury, event, or disease, including the Veteran's reports of exposure to acoustic noise during service. The audiologist or other health care professional is advised to apply general medical principles to the facts of the Veteran's course of medical treatment and the objective evidence of record. Also, the audiologist or other health care professional is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be considered in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.