Citation Nr: 21075698 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-63 821 DATE: December 21, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for Meniere's disease is denied. Entitlement to service connection for ear infections due to Meniere's disease is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his PTSD is due to in-service stressors. 2. The preponderance of the evidence of record is against finding that the Veteran has had right ear hearing loss at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had Meniere's disease at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence of record is against finding that the Veteran has had ear infections as secondary to Meniere's disease at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for right ear hearing loss has not been met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for Meniere's disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for ear infections as secondary to Meniere's disease have not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2005 to June 2014 in the United States Marine Corps. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2015 and November 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The questions for the Board are (1) whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, or (2) whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by service-connected disability. VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) The Veteran contends that he is entitled to service connection for PTSD caused by in-service stressors, specifically combat experience while serving in the Southwest Asia theater. Service connection for a psychiatric disorder, to include PTSD, requires the following three elements: (1) a current medical diagnosis of a psychiatric disorder, (2) credible supporting evidence that the claimed in-service stressor(s) occurred and (3) a link, established by medical evidence, between current symptoms and an in-service stressor. See 38 C.F.R. § 3.304 (f). The Veteran's military personnel records show he served in Iraq and Afghanistan. At the Board hearing, and in statements submitted in August 2017 and February 2018, the Veteran explained that he was a Motor Transportation Operator, and participated in conveys in the field. He reported his unit had to avoid improvised explosive devices (IEDs) and they often took incoming fire. The Veteran stated he began to notice a change in his emotions after being deployed, and that he became more aggressive while in service and even more so after service separation. According to a November 2017 VA examination, the Veteran's reported stressors were sufficient to meet criterion A (adequate to support the diagnosis of PTSD). Therefore, the remaining issues are proper diagnosis of PTSD and a link to his stressors. The November 2017 VA examiner did not issue a diagnosis for PTSD or any other acquired psychiatric disorder. The VA examiner determined that while the stressor met most of the PTSD criterion, the Veteran's symptoms were not found to be significant enough to warrant a diagnosis of PTSD. However, VA mental health treatment notes from December 2017 and January 2018 show the Veteran was diagnosed with PTSD. Additionally, treatment notes from January 2020 indicate the Veteran was hospitalized due to his mental health, and was specifically noted to have a DSM-V diagnosis of PTSD. The Veteran was noted to have experienced PTSD-related symptoms while in service. His symptoms included sleep impairment, racing thoughts, low mood, irritability, feelings of guilt and worthlessness, as well as vague suicidal and homicidal ideation. Treatment records also show the Veteran was prescribed medication to manage his PTSD symptoms. After reviewing the evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted. While the VA examiner did not provide a PTSD diagnosis, multiple VA physicians, including VA psychologists and psychiatrists, did confirm the Veteran's PTSD diagnosis and related his symptoms to his military service. Given the above, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current PTSD is due to an in-service stressor. As the Board finds the evidence is at least evenly balanced as to whether the Veteran's PTSD is due to the in-service combat stressor, service connection for PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for right ear hearing loss The Veteran asserts he is entitled to service connection for right ear hearing loss. The Veteran was previously granted service connection for left ear hearing loss. Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. After reviewing the evidence, the Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss for VA purposes and has not had right ear hearing loss at any time during the pendency of the claim. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran was afforded a VA hearing loss examination in February 2015, during which his right ear pure tone thresholds, in decibels (dB), were as follows: HERTZ CNC 500 1000 2000 3000 4000 % RIGHT 10 10 5 0 10 96 These results show, and the VA examiner noted, that the Veteran does not have a current hearing loss disability in his right ear for VA purposes. See 38 C.F.R. § 3.385. The Board finds that the February 2015 VA examination is competent, credible, and probative. The examination report also confirms the examiner conducted a review of the Veteran's medical records as part of his assessment. There is no indication within the post-service medical records that the Veteran was noted to have right ear hearing loss. Further, the Veteran acknowledged during the Board hearing that he requires a hearing aid only for the left ear, and that he does not have hearing loss in the right ear. Thus, based on a review of the entire record, the Board finds the preponderance of the evidence is against the Veteran's claim. As such, the Veteran's appeal for service connection for right ear hearing loss is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for Meniere's disease The Veteran also seeks service connection for Meniere's disease, claimed as dizziness. The Board concludes that the Veteran does not have a current diagnosis of Meniere's disease and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records from October 2012 indicate the Veteran was diagnosed and treated for Meniere's disease, and in October 2013 the condition was resolved. Post-service treatment records show the Veteran reported having a Meniere's disease diagnosis, but there is no evidence that a physician determined the condition was present after service separation. Post-service medical records repeatedly list the Veteran as being negative for dizziness and vertigo, nor was the disease listed as an active problem. Further, at the Board hearing, the Veteran affirmed that the disease had resolved. Therefore, based on a review of both the medical and lay evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for Meniere's disease, and the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for ear infections due to Meniere's disease Finally, the Veteran asserted he is entitled to service connection for ear infections as secondary to Meniere's disease. The Veteran testified at the Board hearing that he required treatment for an ear infection when he entered service. (Continued on the next page) Service treatment records show the Veteran was treated for left ear pain and diagnosed with Meniere's disease in October 2012. Aside for being seen for left ear hearing loss, post-service medical records fail to show the Veteran has a current diagnosis for ear infections. Further, as discussed above, the service connection claim for Meniere's disease has been denied. Thus, any service connection claim as secondary to Meniere's disease must also be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board finds that the preponderance of the evidence is against the claim for service connection for ear infections, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.