Citation Nr: A21020402 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 190128-2099 DATE: December 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depression, alcohol abuse, mood disorder, and schizoaffective disorder is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to a compensable disability rating for left ear hearing loss is remanded. FINDING OF FACT The Veteran's acquired psychiatric disorder is shown to be related to military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depression, alcohol abuse, mood disorder, and schizoaffective disorder have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the USMC from May 1972 to June 1974, from March 1975 to November 1975, and with the U.S. Army from January 2003 to September 2003. The Veteran was in the Army Reserves from February 2005 to March 2005. This case comes before the Board of Veteran's Appeals (Board) on appeal from a November 2018 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran initiated an appeal under the Legacy appellate system, but in January 2019 he opted to take part in the pilot program for the newly enacted Appeals Modernization Act (AMA) system, the Rapid Appeals Modernization Program (RAMP). The effect of the opt-in was to withdraw the Legacy appeal in return for consideration of a supplemental claim by the AOJ. During the opt-in the Veteran requested a hearing and the ability to submit evidence within 90 days of the hearing. In December 2020, the Veteran testified at a virtual hearing before the undersigned. A transcript of the hearing is associated with the record. The Veteran submitted evidence within 90 days of the hearing which is considered in this decision. The Board notes that the Veteran filed separate claims seeking service connection for depression/alcohol abuse, mood disorder, posttraumatic stress disorder, and schizoaffective disorder. A claim for an acquired psychiatric disorder includes any disorder that is reasonably encompassed by the claimant's symptoms. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, these claims are recharacterized as a claim of entitlement to service connection for an acquired psychiatric disorder, however diagnosed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (2018). Moreover, the United States Court of Appeals for Veterans Claims (CAVC) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As an initial matter, the Board notes that a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. §§ 1111, 1137. There is no evidence of any notation of the presence of a psychiatric disorder during examination upon entry to active duty in May 1972 or March 1975. Thus, the presumption of soundness attaches. Service treatment records (STRs) documented treatment and diagnosis regarding a psychiatric disorder. A February 2005 M.A. Community Hospital treatment record documented that the Veteran was treated for depression while activated at Fort Campbell from 2003 to 2004. A February 2005 R. Medical Center treatment note documented that the Veteran was admitted and treated for a psychiatric disorder. A March 2005 treatment record documented that he was diagnosed with major depression severe with psychotic feature. The Veteran did not meet medical retention standards and was discharged from the Army Reserves. A February 2009 Army physical evaluation noted that the PEB found the soldier was unfit and he had major depression. He was recommended for separation without benefits because the condition existed prior to service and was not permanently aggravated by service. On January 2021 private opinion, Dr. QAS noted that the purpose of the evaluation was to determine to the best degree possible the timing of onset of the Veteran's psychiatric disability and the level of the current impairment. Dr. QAS noted that he reviewed service and medical records and interviewed the Veteran and his wife. Dr. QAS provided an in-depth medical history and psychiatric history about the Veteran. He noted that the Veteran had a lengthy history of mood and psychotic symptoms that began as early as 2000 during the Veteran's period of National Guard service. His symptoms became prominent during times of his reserve activations in 2003. The records demonstrated that he had depression symptoms for which he was treated while in active service at Fort Campbell in 2003 and 2004. Dr. QAS indicated that it was when the Veteran was on his activation in 2005 that his symptoms worsened, and he experienced psychosis which resulted in hospitalization. Therefore, based on all the evidence, Dr. QAS concluded that the Veteran's schizoaffective disorder depressive type first appeared during service in 2003 but was initially diagnosed as depression. Dr. QAS noted that his psychosis became evident within two years of his discharge when he was hospitalized in 2005, this notably took place during a time of active duty and training as part of the reserves. Dr. QAS concluded that the Veteran's schizoaffective disorder depressive type was as likely as not due to his military service and his alcohol use disorder was a secondary condition. As is noted above, by statute and regulation, the Veteran must be presumed sound at entry onto active duty. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. This presumption of soundness can only be overcome by clear and unmistakable evidence that (1) the disability existed prior to service and (2) the disability was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If VA does not establish both of these elements by clear and convincing evidence, the presumption of soundness applies, and service connection may be granted for a disease or disability that had its onset in service. O'Bryan v. McDonald, 771 F.3d 1376, 1381 (Fed. Cir. 2014). Here, the Board finds that the presumption of soundness has not been overcome. Despite the findings of the PEB, the medical evidence of record, including the medical opinion of Dr. QAS, shows that the Veteran's current psychiatric disorder either had its onset during his active-duty service in 2003 or was worsened beyond its natural progression during that time. There is insufficient evidence to show that the psychiatric disorder both pre-existed his active-duty service and was not aggravated by service. As the sole competent, credible, and probative opinion of record supports the claim, the Board must find that the preponderance of the evidence favors the Veteran, and service connection for an acquired psychiatric disorder is warranted. REASONS FOR REMAND Under the AMA, remand is permissible only to correct pre-decisional duty to assist errors. 38 C.F.R. § 20.802. In this case, the Veteran has not been afforded an adequate examination for his bilateral hearing loss. Right ear hearing loss In May 2018, the Veteran was afforded a VA examination and an opinion was rendered against his right ear hearing loss. Specifically, the VA examiner's rationale was conclusory as it was based solely on no evidence of hearing loss or significant or permanent hearing threshold shifts shown during his active duty. Under applicable law, the absence of a hearing loss disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As such, upon remand, the Veteran should be afforded another VA examination to address the etiology of his right ear hearing loss disability completely and adequately. Left ear hearing loss In May 2018, the Veteran was afforded a VA examination. The examiner did not attempt to elicit relevant information regarding the functional impacts caused by the Veteran's hearing loss disability. Therefore, the claim must be remanded for another VA audiological examination. The matters are REMANDED for the following action: 1. Schedule a VA audio examination to determine the nature and etiology of any right ear hearing loss and the current severity and functional impact of the left ear hearing loss. For any identified right ear hearing loss disability, the examiner must opine whether such is at least as likely as not caused by in-service noise exposure or other incident of service. The examiner should note service connection for left ear hearing loss has been granted, and full credit must be given to lay reports of hearing problem history. A full and complete rationale for all opinions expressed is required. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.