Citation Nr: 21076267 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-12 815 DATE: December 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, diagnosed as major depression disorder (MDD), also claimed as posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for right knee strain and osteoarthritis is granted. Entitlement to service connection for left knee strain and osteoarthritis is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran has MDD related to service. 2. The evidence is at least evenly balanced as to whether the Veteran has right knee strain and osteoarthritis related to service. 3. The evidence is at least evenly balanced as to whether the Veteran has left knee strain and osteoarthritis related to service. 4. The evidence is at least evenly balanced as to whether the Veteran's current bilateral hearing loss is related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disability, diagnosed as MDD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right knee strain and osteoarthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for left knee strain and osteoarthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1962 to March 1965. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), that in relevant part, denied service connection for bilateral hearing loss, PTSD, left knee disability and right knee disability. The Veteran timely appealed. Although the RO characterized the psychiatric disability on appeal as PTSD, the Board has recharacterized this issue as an acquired psychiatric disorder, diagnosed as MDD. The psychiatric disability recharacterization encompasses all of the claimed psychiatric symptoms and facilitates resolution of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). In September 2021, the Veteran testified before the undersigned Veterans Law Judge during a virtual hearing. A transcript is of record. 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, 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 This claim has also been developed as a PTSD claim. There are regulations specific to PTSD claims, which impose additional evidentiary requirements. 38 C.F.R. § 3.304(f). Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing, in this case, 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); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Service treatment records (STRs) include a May 1962 medical history report for enlistment. The Veteran endorsed having or ever having nervous trouble. Contemporaneous physical examination showed that the Veteran's psychiatric state was clinically examined and deemed normal. The same medical history report and clinical evaluation were given in February 1965. Service personnel records include the Veteran's military assignment history. They show that he primarily served as an armorer as part of an infantry unit at Fort Bragg. He also completed basic airborne training. DD Form 214 lists the Veteran's military occupational specialty (MOS) as a supply specialist. It reflects that he earned a parachutist badge and served with an infantry unit. April 2012 private medical records showed that the Veteran was treated for a generalized anxiety disorder. In December 2015, the Veteran detailed five military stressors involving parachute jumps and prison of war (POW) training. In each of these instances, he experienced either great psychological distress or feared for his life. In January 2016, R.H., Licensed Mental Health Counselor (LMHC) issued a letter in support of the claim. He diagnosed PTSD and MDD. He had provided the Veteran with a series of individual psychotherapy counseling sessions. He opined that the Veteran's MDD and PTSD symptoms were related to stressful military experiences. In service, the Veteran trained as a parachutist and witnessed fatal jumping accidents. He also continued to be upset about nearly being court martialed over a POW training incident where he refused to participate because of claustrophobia and the possibility of having to respond to civilian riots as part of a rapid reaction team. Currently, he struggled with strong depressive thoughts. In May 2016, the Veteran had a VA-contract PTSD examination with a psychologist. The psychologist diagnosed PTSD. He recounted the Veteran's social and occupational history. For the military stressor, the Veteran reported a parachute jump accident where several jumpers were killed, and others were seriously injured. The psychologist reviewed the symptoms and diagnostic criteria for PTSD. He also noted a depressive disorder diagnosis from private medical records. At the September 2021 hearing, the Veteran reported receiving counseling for PTSD. He recounted several stressors surrounding parachute jumps, including a parachute jump accident where several service members were killed. He also recalled a conflict over POW training where he refused to get in a box and was threatened with discipline for insubordination. 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 acquired psychiatric disability, diagnosed as MDD, have been met. At the outset, the Board notes the favorable May 2016 VA-contract medical opinion for PTSD. However, service connection for PTSD has additional specific evidentiary requirements concerning credible supporting evidence for the type of stressors reported by the Veteran. See 38 C.F.R. § 3.304(f). The below analysis will discuss the service connection criteria for an acquired psychiatric disability, diagnosed as MDD. No prejudice inures to the Veteran from doing so as noted below. The Veteran asserts that he has current psychiatric symptoms related to military stressors. He is competent to report about current psychiatric symptoms and his military experiences. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). He reports experiencing anxiety and depressive type symptoms associated with stressful military experiences, particularly as a parachutist. Service department records confirm that the Veteran completed parachutist training and served with an infantry unit. The Veteran's reports about stressful military experiences as a parachutist, with POW training, and current psychiatric symptoms, are plausible. They are entitled to probative weight to show current symptoms associated with stressful military experiences. Id. The remaining issues are whether the Veteran had a current MDD diagnosis conforming to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V) criteria and whether it is related to military stressors. 38 C.F.R. § 4.125(a). To the extent the Veteran self-reports a current mental disorder diagnosis, he 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). The January 2016 letter from R.H. is competent to establish a current MDD diagnosis and that it is related to service. Cohen, 10 Vet. App. at 139, 140 (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. R.H. had a LMHC qualification and has furnished mental health treatment for the Veteran. He clearly relates this disorder to the Veteran's history of stressful experiences during military service. The Board considers this letter probative to show a current MDD diagnosis related to service. There is no conflicting medical opinion. For the foregoing reasons, the Board finds that a relationship to service for an acquired psychiatric disability, diagnosed as MDD, is at least evenly balanced. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for an acquired psychiatric disability, diagnosed as MDD, 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 an acquired psychiatric disability, diagnosed as MDD, for which service connection has been granted and the Veteran will therefore be compensated for all of his 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). Right and left knee disabilities The Board will address these claims together because of the common factual background. STRs do not show any specific complaint or treatment for knee pain or a knee disorder. The February 1965 Report of Medical History showed that the Veteran denied having or ever having a trick or locked knee. Contemporaneous physical examination showed that the Veteran's lower extremities were clinically evaluated and deemed normal. The above noted service personnel records are incorporated by reference. December 2012 private medical records reflected that the Veteran sought treatment for left knee pain. He reported an exertive history of running miles on asphalt surfaces during military service. April 2013 private physical therapy (PT) records showed that the Veteran was treated for patellofemoral pain. The Veteran had fairly constant knee pain for the past few years. He had had problems with squatting ever since military service. A PT program and goals were given. In April 2016, the Veteran had a VA-contract examination with a physician. He diagnosed bilateral knee strain and osteoarthritis. He reported that date of onset was 1997 with constant pain above knee joints. The Veteran had developed constant pain. Physical findings for both knees were detailed. Diagnostic testing confirmed degenerative arthritis for both knees. The physician furnished a negative medical opinion. He stated that there was no treatment around the time of the Veteran's separation. Despite parachute jumping being well known stressor on the knees, there was a 40 year lapse in treatment from service. In September 2016, the Veteran objected to the April 2016 VA-contract knee examination. He detailed his military activities as a paratrooper and physical training. However, the physician expressed suspicion about his motivations, and it greatly upset him. He was concerned that the physician would be biased against other Veterans as well. September 2019 private medical records showed that the Veteran had bilateral meniscectomies. At the September 2021 Board hearing, the Veteran reported that he carried heavy equipment with his parachute jumps. The landings and other exertive activities during service were very hard on his knees. He also reported that every morning he had to run three to six miles, sometimes with full combat gear. He stated that his doctor thought his military activities were a factor for his current knee problems. For the following reasons, service connection for right and left knee strain and osteoarthritis is warranted. The disputed issue is whether there is a relationship between service and the currently diagnosed right and left knee strain and osteoarthritis. The Veteran is competent to report about his physical activities in service and history of knee pain since it is readily observable. Jandreau, 492 F.3d at 1377 n.4. He reports regularly participating in exertive physical activities throughout service and that he had difficulty squatting ever since service. (See April 2013 private PT records). The reported symptom of difficulty squatting may reasonably be construed as knee pain with activity. The Veteran's reports are entitled to probative weight in showing exertive activities in service and continuous symptoms of knee pain with activity, specifically squatting, that began in service. The April 2016 VA-contract medical opinion weighs against these claims. The physician conceded that there is a known relationship between knee disorders and parachute jumping, but summarily rejected these claims due to an absence of medical treatment until many years after service. However, the Veteran objected to the physician exhibiting a biased attitude and being dismissive of his lay reports. The Veteran has provided competent reports about knee pain with squatting since service and reported that his primary care physician believed it was a factor for his current knee problems. The Veteran's otherwise competent reports may not be rejected solely upon an absence of contemporaneous treatment. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). With this background and the Veteran's concerns about the impartiality of the examining physician, the Board does not find the April 2016 VA-contract medical opinion persuasive to weigh against the claims. The Board could remand these claims 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 right and left knee strain and osteoarthritis is at least evenly balanced. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for right and left knee strain and osteoarthritis is warranted. Bilateral hearing loss As relevant, 38 C.F.R. § 3.385 provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (db) or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. The April 2016 VA-contract examination includes an audiogram that satisfies the current disability element of the claim. STRs do not show any complaints or treatment for hearing loss. The February 1965 separation examination included an audiogram showing 0 db hearing acuity thresholds for 1000, 2000, and 4000 Hz. On his accompanying report of medical history, the Veteran denied ear, nose or throat trouble. The above noted service personnel records are incorporated by reference. January 2000 private medical records showed that the Veteran reported decreased hearing and mild tinnitus. June 2012 private medical records reflected that the Veteran had a consultation for left ear hearing loss. He stated that even with his hearing aid he had been unable to hear out of his left ear for the past month. He suspected wax buildup as the cause. Physical examination confirmed that the left ear was partially obscured with cerumen. The clinician flushed the left ear. In April 2016, the Veteran had a VA-contract audiology examination with an audiologist. The audiologist noted that the Veteran had normal hearing from the 1962 enlistment and 1965 separation audiograms. The current audiogram confirmed bilateral hearing loss. 38 C.F.R. § 3.385. Maryland CNC speech discrimination was 0 percent for both ears, and the audiologist reported that it was appropriate for consideration. The audiologist diagnosed bilateral sensorineural hearing loss. She furnished a negative medical opinion. Her rationale was that there was no significant decrease in hearing acuity while in service. The Veteran also reported tinnitus gradually starting in service. The audiologist related tinnitus to in-service weapon fire noise exposure. At the September 2021 hearing, the Veteran recalled having a hearing test in service. He was suspicious that the examiner passed him without measuring his hearing acuity. He regularly experienced noise exposure in service from heavy weapons and small arms fire. He spent a lot time at the firing range since he worked in weapons repair. He did not have hearing protection, even for parachute jumps. He reported that he had a longstanding hearing problem that was becoming progressively worse. He had noticed his hearing problem right away. He could not hear anything without his hearing aids. For the following reasons, the Board finds that service connection for bilateral hearing loss is warranted. The disputed issue is whether there is a relationship between in-service noise exposure and current hearing loss. The Veteran is competent to report about hearing loss symptoms and their history. Jandreau, 492 F.3d at 1377 n.4. He asserts that he developed hearing loss symptoms from military noise exposure. STRs do not show hearing loss or any changes in hearing acuity during service. However, the Veteran testified that on at least one occasion he did not believe the military examiner conducting his audiogram accurately measured his hearing acuity. He also reported regular noise exposure from weapons fire since he was frequent at firing ranges and worked on weapon repairs. Notably, personnel records support his report since they reflect that the Veteran worked as an armorer in an infantry unit and earned a parachute badge. The Veteran also confirms that his hearing problems had been present for many years and are becoming worse. The Board considers these lay reports probative to show significant military noise exposure and longstanding hearing problems. The April 2016 VA-contract medical opinion weighs against the claim. Review of the examination report shows that the audiologist did not query the Veteran about his history of hearing loss and noise exposure. However, she inquired about the symptom history for the tinnitus claim and found a relationship to service. Her medical opinion also implies that hearing loss or hearing acuity shift must be shown in service. 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). With these limitations, the Board does not find the April 2016 VA-contract medical opinion persuasive. 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, 34 Vet. App. at 225 ("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"). (Continued on the next page) 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, the Board finds that the Veteran's competent and credible lay statements regarding the in-service noise exposure, hearing loss since service, and the clinical evidence showing current bilateral hearing loss consistent with VA regulations, provide a sufficient basis to grant service connection for bilateral hearing loss. 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.