Citation Nr: 21005558 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-09 432 DATE: February 2, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded FINDING OF FACT The Veteran’s bilateral hearing loss was not shown in service or for many years thereafter and is not otherwise related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1968 to July 1972. In December 2020, the Veteran and his wife testified via teleconference before the undersigned Veteran’s Law Judge. A transcript of the hearing has been associated with the record. The Board acknowledges that the Veteran filed a claim of entitlement to service connection for a psychiatric disorder. However, a service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, as reflected herein, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection is warranted when the evidence shows that 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. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a). 1. Entitlement to service connection for bilateral hearing loss The Veteran generally asserts that his bilateral hearing loss is related to his service. Specifically, he asserts that his bilateral hearing loss was caused by his exposure to loud noises as a police officer during active service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.385. In cases where a hearing loss disability is claimed, impaired hearing will be considered to 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 above 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. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran’s separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for disability under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385, then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. In this case, based on the evidence of record, the Board determines that service connection is not warranted for bilateral hearing loss. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. As an initial matter, the Board finds the Veteran’s statements regarding his in-service acoustic trauma competent and credible given the nature of his service and exposure to hazardous noises, as a base police officer, which is reflected in military personnel records. Thus, the Board concedes exposure to hazardous noise for purposes of establishing an in-service event. However, the service treatment records are silent for any complaints, symptoms, or a diagnosis relating to hearing loss. Of note, the Veteran’s May 1972 separation examination does not report any symptoms, or a diagnosis related to the disorder on appeal. Additionally, the Veteran’s June 1968 enlistment audiological examination and May 1972 separation audiological examination do not reflect a threshold shift indicative that his hearing loss developed during service. The Veteran’s post-service medical evidence does not demonstrate any symptoms or a diagnosis of hearing loss until approximately 2012 including his 1972 separation examination. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes the statements from the Veteran, his wife, and his friends regarding his history of symptoms since service. While they are competent to report that the Veteran experienced symptoms decreased hearing sensations since service, they are not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, the Veteran asserts that his disorders have persisted since service, the Board determines that the Veteran’s reported history of continued symptoms while competent, is nonetheless not sufficient in establishing a relationship between his complaints and active service. As an initial matter, the large gap in treatment for these disorders weighs against the Veteran’s claims. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). Next, although the Veteran is not competent to diagnose and provide etiological opinions related to the disorder on appeal, service connection may nonetheless be established if a relationship may be otherwise established by competent evidence, including medical evidence and opinions. In this case, the Board places significant probative value on the opinions from the December 2012 VA examiner that performed a detailed review of the Veteran’s service and medical treatment records, as well as a comprehensive physical examination. In this case, the examiner opined that the Veteran’s bilateral hearing loss was not related to service. In support, he noted that the Veteran did not have any hearing loss or significant hearing threshold changes during service. The examiner also observed that the Veteran did not report experiencing hearing loss until approximately 2000 to 2005 which is over 30 years after service. Therefore, the Veteran has not provided sufficient medical evidence to establish a relationship between his bilateral hearing loss and active service. As part of this claim, the Board recognizes the statements from the Veteran and his loved ones, regarding the relationship between his disorders and active service. Nevertheless, while they are competent to provide testimony regarding observable symptomatology such as decreased hearing sensations, they are not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorder are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection for an acquired psychiatric disorder, to include PTSD, and bilateral hearing loss. There is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 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. REMAND 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD Unfortunately, the Veteran’s claim for service connection for an acquired psychiatric disorder must be remanded for potential further development. Specifically, according to the June 2015 statement of the case, the Veteran’s claim for PTSD was denied substantially on the basis that PTSD was not clinically diagnosed. This is also the last time this claim was adjudicated. However, since that time, the Veteran has submitted new evidence that directly rebuts the basis of the last denial of this claim. Specifically the evidence now includes a January 2020 letter from a VA clinical physician with a specialty in psychiatry. Moreover, this new diagnosis may require a new examination or additional steps to corroborate the Veteran’s stressors. Therefore, a remand is required to complete the necessary development. The Board also notes that, when the Veteran submitted this new opinion, he also submitted an April 1994 determination from the Social Security Administration (SSA) that found him unable to maintain gainful employment since 1991. As it does not appear that the Veteran’s SSA records are part of the claims file, an effort should be made to acquire them. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Therefore, the issue is remanded for the following action: 1. Obtain all VA treatment records not currently associated in the claims file. The Veteran should also be afforded a sufficient opportunity to submit any additional private psychiatric treatment records. 2. Acquire all records available from the Social Security Administration. 3. After the completion of any additional development deemed necessary based on the new evidence of record, to include any new VA examinations and/or attempts to corroborate the Veteran’s stressor(s), readjudicate the claim. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel