Citation Nr: 21076854 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-19 978 DATE: December 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had any acquired psychiatric condition other than alcohol dependence at any time during or approximate to the pendency of the claim. 2. The Veteran's alcohol dependence is not caused by or aggravated beyond its natural progression by any service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from January 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA); this case is in VA's legacy appeals system. After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for PTSD to encompass any acquired psychological disorder, to include PTSD. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he has PTSD as a result of his active service. Alternatively, he contends that his diagnosed alcohol dependence is related to his active service. 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). The question for the Board is 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. The Board concludes that the Veteran does not have a current diagnosis of PTSD 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). The September 2014 and November 2016 VA examiners each evaluated the Veteran and determined that, while he experienced subjective symptoms of nightmares, periods of depression, and chronic sleep impairment, he did not have a diagnosis of PTSD. Further, post-service treatment records from July 2007 to June 2021 do not contain a diagnosis of PTSD. Both VA examiners acknowledged that the Veteran's claimed stressor would be sufficient to support a diagnosis of PTSD. However, the Veteran's reported symptoms did not fit the criteria. The October 2014 examiner opined that the Veteran was a healthy male psychologically, that his substance use was discontinued decades ago and never rose to the level of a diagnosable disorder, and that his only historical period of depression was clearly linked to his divorce. The November 2016 examiner identified symptoms including nightmares, periods of depression, and chronic sleep impairment, but noted that the Veteran denied all avoidant symptoms. The November 2016 examiner also noted that the Veteran's historical periods of depression were clearly linked to post-service events including his divorce and the deaths of his parents. The November 2016 examiner agreed that the Veteran did not meet the diagnostic criteria for PTSD but opined that he did meet the criteria for alcohol abuse. They also opined that the alcohol abuse was less likely than not related to his active service. While the Veteran and his representative believe he has a current diagnosis of PTSD, neither one of them is competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education which the Veteran and his representative are not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, including the opinions of the two VA examiners and the Veteran's treating doctors. The Board notes that service connection is not available for a disability that is the result of a veteran's willful misconduct or the result of his abuse of alcohol or drugs. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. However, service connection may be granted for alcohol abuse that is a secondary to or is caused by a primary service-connected disorder. Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. As such, service connection for alcohol dependence can only be awarded on a secondary basis. The Veteran has not claimed that any condition other than his PTSD contributed to his alcohol abuse, and he does not have a diagnosis of PTSD. Because the preponderance of the evidence is against finding that the Veteran has PTSD or had it at any time during or approximate to the pendency of the claim, service connection for PTSD is not warranted. Because there is no primary service-connected disability which caused the Veteran's alcohol dependence or aggravated it beyond its natural progression, service connection for alcohol dependence is also not warranted. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a back condition In September 2014, VA provided an examination to determine the nature and etiology of the Veteran's claimed back condition. The examiner diagnosed thoracic muscle spasm and opined that it was less likely than not related to the Veteran's active service. However, the examiner also noted, and the Veteran's treatment records confirm, that he has an x-ray confirmed diagnosis of degenerative arthritis of the lumbar spine. This is a chronic condition listed in 38 C.F.R. § 3.309. The Board cannot make a fully-informed decision on the issue of service connection for a back condition because no VA examiner has opined whether the Veteran's arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 2. Entitlement to service connection for bilateral hearing loss is remanded. In September 2014, VA provided an examination to determine the nature and etiology of the Veteran's claimed bilateral hearing loss. The examiner diagnosed bilateral sensorineural hearing loss and opined that it was less likely than not related to the Veteran's active service. However, sensorineural hearing loss is an organic disease of the nervous system and therefore a chronic condition listed in 38 C.F.R. § 3.309. The Board cannot make a fully-informed decision on the issue of service connection for bilateral hearing loss because no VA examiner has opined whether the Veteran's bilateral hearing loss (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. A remand is necessary to obtain this opinion. 3. Entitlement to service connection for tinnitus is remanded. Finally, because a decision on the remanded issue of service connection for bilateral hearing loss could significantly impact a decision on the issue of service connection for tinnitus, the issues are inextricably intertwined. A remand of the claim for tinnitus is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his back condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Does the Veteran have lumbar spine arthritis that is at least as likely as not related to service? Does the Veteran have lumbar spine arthritis that at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Obtain an addendum opinion from an appropriate medical professional regarding the Veteran's claimed bilateral hearing loss and tinnitus. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's bilateral hearing loss (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Is it at least as likely as not that the Veteran's tinnitus began during active service? Is the Veteran's tinnitus at least as likely as not caused by or aggravated beyond its natural progression by his bilateral hearing loss? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. The Veteran is competent to describe his own lay-observable symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah 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.