Citation Nr: 21074423 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-25 849 DATE: December 15, 2021 ORDER Entitlement to service connection for adjustment disorder with anxiety is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran has adjustment disorder with anxiety related to service. 2. The evidence is at least evenly balanced as to whether the Veteran's current tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for adjustment disorder with anxiety have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 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, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1997 to April 2003, July 2003 to May 2004, February 2008 to February 2010, June 2011 to December 2011. She also had verified active duty for training (ACDUTRA) from January 2013 to February 2013 and January 2016 to April 2016. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), that in relevant part, denied service connection for an adjustment disorder with anxiety and tinnitus. The Veteran timely appealed. In December 2021, the Veteran testified before the undersigned Veterans Law Judge during a virtual hearing. A transcript of that hearing is not necessary given that the Board is granting the benefits sought in full. 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, air, or space 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 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). Service treatment records (STRs) appear incomplete. STRs from the Veteran's initial period of service are not available. See also May 2018 Army Records Processing Center report. In such a case, the Board has heightened obligations to explain its findings and conclusions and carefully consider the below noted benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim of service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (declining to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). Adjustment disorder with anxiety In April 2004, the Veteran completed a Post-Deployment Health Assessment for her service in Afghanistan as part of Operation Enduring Freedom. She reported witnessing coalition force casualties. She endorsed hypervigilant type symptoms. The clinician did not indicate that a mental health (MH) referral was needed. In December 2009, the Veteran completed another Post-Deployment Health Assessment. She reported serving in the United States. She endorsed having some difficulty with daily activities due to emotional problems and hypervigilant type symptoms. January 2010 STRs showed that the Veteran reported hypervigilance type symptoms with crowds and flashbacks from combat images. Her personality changed with her deployment. She had difficulty sleeping because she would awaken and ruminate over her deployment experiences. She kept busy to avoid these deployment ruminations. Psychiatric examination was normal. The clinician, a Licensed Certified Social Worker (LCSW), diagnosed posttraumatic stress disorder (PTSD). In October 2011, the Veteran completed another Post-Deployment Health Assessment. She reported serving three months in Iraq. She stated that she witnessed a blast or explosion and felt that she was in great danger of being killed. She endorsed hypervigilant type symptoms. The clinician reported that the Veteran detailed the blast as occurring about a one mile away and reported being easily startled from loud noises since her 2003 deployment. He made a behavioral health (BH) referral. In April 2012, the Veteran completed another Post-Deployment Health Assessment. She had spent three months serving in Iraq in 2011. She witnessed a blast or explosion. She endorsed having some difficulty with daily activities due to emotional problems and some instances of depression. The clinician reported that the Veteran's physical and emotional issues were not related to the deployment. No referrals were made. January 2016 VA treatment records showed that the Veteran had treatment for anxiety type symptoms with alternative modalities, such as meditation and yoga. The primary diagnosis was listed as anxiety and depressed mood. January 2017 medical records reported that the Veteran had a pre-employment screening. She had a one year history of PTSD counseling following her 2003 deployment. Her primary MH symptom was hypervigilance. The clinician assessed PTSD with a history of no counseling for several years and no medication. In April 2018, the Veteran had a VA Mental Disorders examination with a psychologist. She declined to issue a diagnosis since the Veteran's current level of symptoms did not reach the level of pathology. She detailed the relevant social, military and occupational history. She reviewed her STRs and relevant post service medical records. Behavioral observations were within normal limits. She detailed the Veteran's reports about sleeping problems and hypervigilance. The Veteran stated that she was always hypervigilant, and it bothered her. She also reported daily irritability and concentration problems. The psychologist summarized that the Veteran had some stressful experiences in service and current anxiety symptoms. However, the symptoms did not reach the level of a mental disorder. She stated it was common for PTSD and anxiety symptoms to wax and wane. She noted the in-service PTSD diagnosis and VA treatment records for adjustment disorder with anxiety. However, she stated that treating clinicians were focused on treating symptoms and their diagnoses were not reflective a fully developed disorder. She cited the Veteran's high level of current function as weighing against a current mental disorder. August 2018 VA medical records included reports about anxiety associated with multiple life changes. The diagnosis was listed as adjustment disorder with anxiety. In April 2019, the Veteran reported that she was first diagnosed with PTSD, but her diagnosis was later updated to an adjustment disorder with anxiety. She stated that her psychiatric symptoms started during her 2003-04 deployment to Afghanistan. She worked at a hospital and witnessed causalities with horrifying injuries. She sought counseling in Afghanistan, but the records were not stored properly. When she returned, she described the medical screening for psychiatric problems at the time as poor and even if it was better, she probably would not have disclosed any symptoms due to stigma surrounding MH treatment. In August 2019, the Veteran submitted a detailed summary about her behavioral health history. Her reports were substantially similar to the those given in April 2019. Additionally, she objected to the April 2018 VA Mental Disorder examination report. She stated that her psychiatric symptoms had persisted since service. She believed it was unreasonable for a new examining clinician to provide a full and accurate evaluation over a brief visit. She also took issue with the VA psychologist's characterization of changing symptoms and noted that the assessment could simply be based on good day of functioning. She emphasized that she would not have continued to seek psychiatric treatment following service if she did not have valid symptoms. She also disputed the VA psychologist's characterization of her as high functioning. She had difficulty with her first marriage and completing college coursework. Occasionally, she experienced incapacitating depression. She went into great detail about the inconsistencies and inaccuracies from the April 2018 VA examination and detailed the clinical records for her mental health treatment history. In August 2019, the Veteran also submitted several letters from family and friends. They attested to the Veteran's anxiety and sleep disturbances symptoms during and after service. For the following reasons, the Board finds that the evidence of record is at least evenly balanced as to whether the service connection elements for an adjustment disorder with anxiety have been met. The Veteran asserts that she has had anxiety symptoms beginning in service. She is competent to report about her anxiety symptoms and history. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). She reports developing anxiety symptoms, notably hypervigilance, following her first deployment to Afghanistan in 2003 and 2004. During this deployment, she assisted managing coalition casualties with gruesome injuries. Her reports are supported by the available STRs, which note exposure to causalities following her first Afghanistan deployment and subsequent reports about some difficulties with daily activities due to emotional problems. In particular, January 2010 STRs included a PTSD assessment. She asserts that she has continued to experience anxiety and sleep disturbance symptoms since then. Her reports are plausible and entitled to probative weight to show continuous symptoms for anxiety and sleep disturbances beginning in service. Id. The remaining issue is whether the Veteran's current psychiatric symptoms warrant a mental disorder diagnosis conforming to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V) criteria, in accordance with 38 C.F.R. § 4.125(a). To the extent the Veteran self-reports a current mental disorder diagnosis, she is not competent to do so, and medical evidence must be considered to establish a valid DSM-V mental disorder diagnosis. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (lay witness generally not competent to furnish a valid psychiatric diagnosis). VA treatment records from January 2016 to August 2018 show that the Veteran was periodically treated for psychiatric symptoms under a diagnosis of an adjustment disorder with anxiety. Since this mental disorder diagnosis was given by a treating clinician, it is probative evidence of a valid mental disorder diagnosis for VA compensation purposes. Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997) (mental health professionals "are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis"); 38 C.F.R. § 4.125. The evidence weighing against a valid DSM-5 mental disorder diagnosis consists of the April 2018 VA medical opinion. The VA psychologist discounted the severity of the Veteran's symptoms due to perceived high general functioning. The Veteran has strenuously objected to the VA psychologist's assessment as being based on an inaccurate factual premise that her symptoms were minimal. (See August 2019 Veteran report). The Veteran's objections have merit since the record shows that she had had longstanding psychiatric symptoms that cause functional impairment. Also, the medical opinion is inconsistent with the fact that her treating clinician does not indicate her symptoms are insignificant or otherwise do not warrant formal MH care. For these reasons, the Board therefore does not find the April 2018 medical opinion probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (setting forth factors to be considered in assigning probative weight to an opinion). For the foregoing reasons, the Board finds that a relationship to service for an adjustment disorder with anxiety is at least evenly balanced. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for adjustment disorder with anxiety is warranted. To the extent that entitlement to service connection for PTSD is on appeal, the Board will not address this as a separate issue because there is no indication there are symptoms of PTSD distinct from adjustment disorder with anxiety for which service connection has been granted and the Veteran will therefore be compensated for all of her psychiatric symptoms. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Tinnitus The available STRs showed that the Veteran was enrolled in a hearing conservation program from February 2008 to October 2016. In her January 2018 claim, the Veteran stated that she was unsure if she had a formal tinnitus diagnosis. However, during service she flew in and out of combat zones in a helicopter and asserted that her tinnitus began in service. In April 2018, the Veteran had a VA audiology examination with an audiologist. The audiologist noted a description of occasional tinnitus with episodes lasting a few seconds and occurring a few times per month. She noted the hearing loss clinical evaluation was normal. She stated that the Veteran's tinnitus descriptions were normal according to medical literature. Pathological tinnitus lasted more than five minutes, more than once a week and was usually experienced by persons with hearing loss. In April 2019, the Veteran reported that she had chronic and constant tinnitus since her most recent deployment and that she was routinely exposed to loud noises during service. For the following reasons, the Board concludes that service connection for tinnitus is warranted. The disputed issue is whether there is a relationship between service and current tinnitus. The Veteran is competent to report about tinnitus symptoms and its history. Jandreau, 492 F.3d at 1377 n.4. She reports first developing tinnitus following her most recent deployment, which appears to be from June 2011 to October 2011 in Iraq. See October 2011 and April 2012 Post-Deployment Health Assessments. She reports sustaining frequent noise exposure in service and this report is consistent with her history of multiple deployments to Southwest Asia and hearing conservation monitoring. 38 U.S.C. § 1154(a). The Board considers these lay reports probative to show tinnitus symptoms starting in service. Id. The April 2018 VA medical opinion weighs against the claim. The tinnitus symptom report transcribed by the audiologist varies from the Veteran's April 2019 description of chronic and constant tinnitus symptoms. It may be inaccurate. Given this limitation, the April 2018 VA medical opinion is not entirely persuasive. Nieves-Rodriguez, 22 Vet. App. at 304. The Board could remand the claim for another medical opinion, but 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, 225 (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"). For the foregoing reasons, the Board finds that a relationship to service for tinnitus is in a state of relative equipoise. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (lay evidence may be sufficient in and of itself to substantiate a service connection claim). 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 tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.