Citation Nr: A21019463 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 210726-174301 DATE: December 7, 2021 ORDER Service connection for right ear hearing loss is denied. REMANDED The issue of service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), anxiety, and depression, is remanded. FINDING OF FACT The Veteran does not have a right ear hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria to establish service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1966 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2021 rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran timely appealed this rating decision to the Board and requested the evidence submission review lane, allowing him 90 days to submit evidence pertinent to his claim. See Appeals Modernization Act (2019) ("AMA"). 84 Fed. Reg. 138, Pub. L. No. 115-55, § 5104 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017). Service connection for right ear hearing loss will be denied because the evidence does not show that the Veteran currently has a right ear hearing loss disability for VA purposes. The issue of service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, will be remanded for a new VA examination. Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or injury; (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Certain chronic diseases, including sensorineural hearing loss, may generally be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing will be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where a veteran can establish a nexus between his current hearing loss and an in-service injury. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau, 492 F.3d 1372 at 1376-77. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. at 53. Service connection for right ear hearing loss is denied. The Veteran's left ear hearing loss is service-connected. The Veteran contends that he currently has right ear hearing loss that is also the result of military service. The Veteran's service personnel records reveal that he had a military occupational specialty (MOS) of an Aircraft Maintenance Specialist. This MOS has been associated with a high likelihood of exposure to acoustic trauma. Therefore, the Veteran's in-service exposure to acoustic trauma is substantiated. The December 1965 pre-induction examination shows pure tone thresholds for the right ear, in decibels, as follows: 10 at 500 hertz; 5 at 1000 hertz; 5 at 2000 hertz; 5 at 3000 hertz; and 5 at 4000 hertz. The March 1966 hearing conservation data shows pure tone thresholds for the right ear, in decibels, as follows: -5 at 500 hertz; -5 at 1000 hertz; -10 at 2000 hertz; -5 at 3000 hertz; and -5 at 4000 hertz. The November 1969 separation examination shows pure tone thresholds for the right ear, in decibels, as follows: 15 at 500 hertz; 10 at 1000 hertz; 0 at 2000 hertz; 10 at 3000 hertz; and 5 at 4000 hertz. The Veteran's service treatment records are absent for any further discussion of complaints of right ear hearing loss. These audiograms do not reveal evidence of hearing loss for VA purposes. 38 C.F.R. § 3.385. The Veteran's claims file does not show any evaluation for hearing loss post-service until the August 2019 VA examination. The August 2019 VA examination shows pure tone thresholds for the right ear, in decibels, as follows: 20 at 500 hertz; 10 at 1000 hertz; 25 at 2000 hertz; 35 at 3000 hertz; and 35 at 4000 hertz. Speech testing revealed a score in accordance with the Maryland CNC of 94 percent for the right ear. The Veteran was provided with a diagnosis of right ear sensorineural hearing loss. The Veteran asserted that his right ear hearing loss onset in-service due to exposure to acoustic trauma. The examiner opined that it is at least as likely than not that the Veteran's right ear hearing loss is due to damage from military noise exposure. The rationale provided was that the Veteran's MOS carried a high probability of hazardous noise exposure and the Veteran reported significant military noise exposure; given the absence of any contradictory evidence and given the fact that the Veteran reported that he first began experiencing hearing loss in-service, it is reasonable to believe that his hearing loss may be a result of damage from military noise exposure. However, on this record, the evidence shows that the Veteran does not have a right ear hearing loss disability for VA purposes. Accordingly, the claim of service connection for a right ear hearing loss disability must be denied. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131. The evidence establishes that the Veteran does not currently have a right ear hearing loss disability for VA purposes. Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As discussed above, the evidence shows that the Veteran did not have hearing loss for VA purposes at service separation, his claims file shows that he did not complain of hearing loss post-service until 2019, and he was not evaluated for hearing loss until August 2019. Even then, the evidence shows that he does not have a right ear hearing loss disability for VA purposes. Therefore, chronicity has not been established. Additionally, there is no evidence of continuity of or evidence of a right ear sensorineural hearing loss disability within one year of separation from service. Thus, service connection cannot be awarded on a presumptive basis. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303(b), 3.307, 3.309; see also Walker, 708 F.3d at 1339. The Veteran is not competent to establish that he has a current right ear hearing loss disability. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. The Veteran is not competent to diagnose any current right ear hearing loss disability. The question regarding the diagnosis of such a disability is a complex medical issue that cannot to be addressed by a layperson. Jandreau, 492 F. 3d at 1372. Accordingly, this claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 at 53-56. REASONS FOR REMAND The issue of service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, is remanded. The Board has identified a pre-decisional duty to assist error and the matter is REMANDED for the following: 1. BACKGROUND FOR THE AOJ ADJUDICATOR: The August 2019 VA Initial PTSD examination is inadequate to resolve the appeal. Upon examination, the examiner noted that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM-V criteria, and he does not have a mental health disorder that conforms with DSM-V criteria. The examiner found that Criterion B, E, and G for a diagnosis of PTSD were not met. However, the examination report indicates that some or all these Criterion may have been met, given the Veteran's statements, which are contained in the examination report. The examiner failed to provide adequate rationale as to the findings reached regarding a diagnosis of PTSD. The examination shows that the examiner evaluated with the Veteran with symptoms of moderate depression and severe anxiety and noted that the Veteran's risk of suicide is estimated as mildly elevated on a chronic basis. Notwithstanding this, the examiner stated that "[t]here are no mental conditions apparent." Accordingly, the examination is inadequate, and a new examination is necessary on remand. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012) (citing D'Aries v. Peake, 22 Vet. App. 97, 104 (2008)). THE REMAND DIRECTIVES FOLLOW. 2. Schedule the Veteran for a VA PTSD and mental disorders examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD, anxiety, and depression. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner MUST provide the following opinions: 3. The examiner is ADVISED that the Veteran's fear of hostile military or terrorist activity during his service in Vietnam is PRESUMED. 4. Following a thorough mental health evaluation, identify all the Veteran's currently diagnosed mental health disorders, to include PTSD, anxiety, and depression. 5. Regarding a potential diagnosis of PTSD and in application of the DSM-V criteria for a diagnosis of PTSD, the examiner must specifically address, discuss, and fully explain all reported symptoms, to include symptoms reported in the August 2019 VA examination, in which the Veteran endorsed the following symptoms: nightmares and unwanted memories; persistent negative beliefs; inability to remember an important aspect of the traumatic event; and difficulty concentrating, aggressive behavior, and difficulty sleeping. 6. Regarding a potential diagnosis of PTSD and/or any other mental health diagnosis, the examiner MUST specifically discuss the August 2019 VA examiner's evaluation of the Veteran with moderate symptoms of depression, severe symptoms of anxiety, and the examiner's note that the Veteran's risk of suicide is estimated as mildly elevated on a chronic basis. 7. Regarding a potential diagnosis of PTSD and/or any other mental health diagnosis, the examiner MUST also specifically discuss the August 2019 VA examination, in which the Veteran reported symptoms of the following: unwanted memories and nightmares of traumatic events in Vietnam; avoidance of internal and external reminders of traumatic events in Vietnam; loss of memory, persistent negative beliefs, strong negative emotion, and interpersonal estrangement; and aggressive behavior, problems concentrating, and sleep difficulty. 8. Identify whether any currently diagnosed mental health disorder was incurred in-service, or caused by an in-service injury, event, or illness, to include his presumed fear of hostile military or terrorist activity during his service in Vietnam. 9. If the examiner determines that the Veteran has more than one currently diagnosed mental health disorder, to the extent possible, the examiner is asked to differentiate between the diagnoses and provide etiological opinions for each diagnosis. 10. THE EXAMINER MUST ALSO EXPRESS AN OPINION OF WHETHER THE VETERAN'S ACCOUNT OF THE DEVELOPMENT OF THE DISORDER IS CONSISTENT WITH THE MEDICAL EVIDENCE AND THE EXAMINER'S KNOWLEDGE AND PRACTICE EXPERIENCE. 11. If the examiner determines that any currently diagnosed mental health disorder was not incurred in-service, or caused by an in-service injury, event, or illness, to include his presumed fear of hostile military or terrorist activity during his service in Vietnam, to the extent possible, the examiner is asked to provide etiological opinions for each diagnosis. 12. The examiner MUST provide a complete and full explanation for the opinions provided. 13. The examiner is ADVISED that an opinion without a complete and full explanation is not adequate. The examiner MUST review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner's attention is drawn to the following: * The Veteran's fear of hostile military or terrorist activity during his service in Vietnam is PRESUMED. * In a May 2019 statement in support of claim for service connection for PTSD, the Veteran reported that by 1980, he was medicating himself with alcohol to numb the pain of remembering traumatic experiences in Vietnam. He reported that he currently experiences trouble sleeping due to nightmares, and problems with anger. * The August 2019 VA examination showing that the Veteran was evaluated with symptoms of moderate depression and severe anxiety and showing that the Veteran's risk of suicide is estimated as mildly elevated on a chronic basis. * The August 2019 VA examination showing that the Veteran reported the following symptoms: unwanted memories, nightmares, emotional reactivity to reminders of traumatic events, avoidance of internal and external reminders, loss of memory, persistent negative beliefs, inability to remember an important aspect of the traumatic event, strong negative emotion, interpersonal estrangement, aggressive behavior, problems concentrating, and sleep difficulties. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. 14. Ensure that the VA examiner has followed the remand instructions and readjudicate the issue on appeal. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.