Citation Nr: 21069983 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 18-38 088 DATE: November 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) with insomnia is granted. FINDINGS OF FACT 1. The evidence is approximately balanced as to whether the Veteran's bilateral hearing loss is related to in-service acoustic trauma. 2. The evidence is approximately balanced as to whether the Veteran's tinnitus is related to in-service acoustic trauma. 3. The evidence is at least evenly balanced as to whether the Veteran's PTSD with insomnia are related to in-service stressors. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for PTSD with insomnia have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1951 to October 1953. This case comes before the Board of Veterans' Appeals (Board) from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied service connection for bilateral hearing loss, tinnitus, and PTSD. In April 2018 the Veteran filed a notice of disagreement (NOD) and in May 2018 the RO issued a statement of the case (SOC). In July 2018 the Veteran filed a substantive appeal (via VA Form 9). In October 2021 the Veteran contacted VA and withdrew his request for a Board hearing. Therefore, the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(d). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Bilateral hearing loss and tinnitus 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. At the February 2017 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 55 70 70 85 LEFT 60 65 80 95 110 Maryland CNC speech recognition scores were 28 percent in the right ear and 52 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. Additionally, at the February 2017 VA audiological examination the Veteran reported experiencing intermittent ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, the first element of service connection has been met with regards to both issues. The Veteran contends that he experienced in-service noise exposure. On an April 2018 Statement in Support of Claim (VA Form 21-4138) the Veteran stated that he was around loud aircraft in service which caused him to have a ringing in his ears and diminished hearing that would last for hours and days at a time. The Veteran's personnel records reveal he was a parachute rigger which indicates he performed duties with a high probability of military noise exposure. Therefore, the Veteran's claimed noise exposure is consistent with the places, types, and circumstances of service, and is credible 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 tinnitus and his in-service acoustic trauma. A February 2017 VA audiologist opined that the Veteran's bilateral hearing loss and tinnitus are less likely than not (less than 50 percent) caused by or a result of an event in military service. The VA audiologist explained that the Veteran served in the military many years ago and he reports only occasional tinnitus that clears after 10 minutes. The VA audiologist also noted that the Veteran subsequently worked for a railroad for over 25 years during which he incurred significant noise exposure. Significantly, the Veteran stated that he has continuously experienced hearing problems and tinnitus since his service which he is competent to report. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Although the VA audiologist rendered the opinion that the Veteran's current bilateral hearing loss and tinnitus were not related to service, such an opinion is of little probative value as he did not take into account the Veteran's competent and credible reports of continuous bilateral hearing loss and tinnitus symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). There is no other probative evidence of record that attributes the Veteran's current bilateral hearing loss and tinnitus to any other cause than in-service noise exposure. The Board could remand the claim for yet another medical opinion, however, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The evidence is sufficient to decide the claim as it shows current disabilities that had their onset in service. VA laws and regulations require an adjudicator to review the entire record, including lay statements, and give due consideration to VA policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). After so doing, and with reasonable doubt resolved in the Veteran's favor, based on the above evidence entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for PTSD with insomnia In the December 2016 Fully Developed Claim (VA Form 21-526EZ) the Veteran claimed service connection for PTSD along with depression, shell shock, nervousness, memory loss, sleep disturbances, combat fatigue, combat neurosis, and anxiety condition. 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). Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). An October 2017 VA psychologist diagnosed the Veteran with PTSD with insomnia. Thus, a current disability has been demonstrated. In a December 2016 Statement in Support of Claim for PTSD (VA Form 21-0781) the Veteran stated that he witnessed a Marine detonate a grenade and blow himself up. In a January 2017 Statement in Support of Claim for PTSD Secondary to Sexual Personal Assault (VA Form 21-0781a) the Veteran stated that he was affected when a fellow soldier with the initials P.C. died due to a parachuting accident. The Veteran stated he was exposed to mustard gas while in boot camp at Parris Island. Also, in an April 2018 Statement in Support of Claim (VA Form 21-4138) the Veteran stated that he suffered emotionally and physically in service due to constantly fighting and defending himself. An April 2017 USMC Casualty Report and the Veteran's military personnel records confirm that a Marine with the initials P.C. died in a parachuting accident while they were both stationed at Lakehurst, NJ, in August 1952. Further, a January 1952 service treatment record (STR) indicates that the Veteran reported nervousness and sweating palms. On the October 1953 separation examination report the physician noted the Veteran was "quite nervous." Thus, there is credible supporting evidence that the claimed in-service stressor occurred. The remaining question concerns whether there is a link, established by medical evidence, between current symptoms and an in-service stressor. A May 2017 VA psychiatrist opined that the Veteran did not meet the DSM-V criteria for a diagnosis of PTSD and did not diagnose him with any other mental health disorder. The VA psychologist explained that although the Veteran meets criteria A for PTSD and had symptoms related to trauma (i.e. occasional nightmares and flashbacks about event), his reported history and symptoms do not meet the full criteria for a diagnosis of PTSD as he denied significant impairment in multiple areas and did not endorse persistent anxiety or mood symptoms. The VA psychiatrist also explained that the Veteran does not have sufficient symptoms in criteria D, E, or G to make a diagnosis, nor does he have any other underlying Axis I disorder. The Board finds this opinion probative as it is clearly stated and supported by a thorough rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). An October 2017 VA psychologist diagnosed the Veteran with PTSD and insomnia and noted the Veteran experienced PTSD symptoms since his military service in the Korean War. The VA psychologist diagnosed the Veteran with PTSD based on his treatment in the military as a black person as well as witnessing the death of a fellow marine in a parachuting accident. The Board considers the October 2017 VA treatment note as an implicit nexus opinion given the context in which the diagnosis was made. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Thus, the October 2017 VA treatment note is entitled to substantial probative weight. The Veteran is competent to report about the circumstances of his military service, his current symptoms, and history of symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Taken together, the Board finds the implicit nexus opinion provided by the October 2017 VA psychologist and the Veteran's lay statements to be equal in probative weight to the negative nexus opinion provided by the May 2017 VA psychiatrist. The evidence is thus at least evenly balanced as to whether the Veteran has PTSD with insomnia that is related to in-service combat stressors. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for PTSD with insomnia is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that the benefit granted herein is service connection for PTSD with insomnia. Although the Veteran filed claims for service connection for other psychiatric disabilities, there do not appear to be any other psychiatric diagnoses of record. To the extent that there are any such diagnoses, there is no indication that that there are any psychiatric symptoms that are separately attributed to them. Therefore, a separate decision as to entitlement to service connection for a psychiatric disability other than PTSD is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). 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.