Citation Nr: 21007330 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-35 125 DATE: February 9, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD), major depressive disorder, and panic disorder, is granted. Service connection for tinnitus is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran has had a diagnosis of PTSD, major depressive disorder, and panic disorder, during the course of the appeal which has been attributed to a stressor event in service. 2. The preponderance of the competent evidence of record is against a finding that the Veteran's tinnitus had an onset in service, within one year of separation from service, or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD, major depressive disorder, and panic disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1967 to February 1977. In April 2018, the Board issued a decision denying entitlement to service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with mixed anxiety and depression. The Veteran appealed the Board's April 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2018 Order, the Court granted a Joint Motion for Remand (JMR), thereby vacating the Board's decision, and remanding the issue back to the Board. In September 2019, the Board remanded this matter for further development. With regard to the claim for service connection for tinnitus, in April 2020, the Board remanded this matter for further development. 1. Entitlement to service connection for an acquired psychiatric disability. The Veteran contends he has PTSD caused by active service. He asserts he has a current diagnosis of PTSD due to stressors related to fear of hostile military or terrorist activity during service in the Republic of Vietnam. He has reported (1) pulling dead service members from the water while stationed onboard the USS Alfred A. Cunningham; (2) being fired upon by the enemy while onboard the ship; and (3) watching planes crash into the water while attempting to land on the ship. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Significantly, in the June 2016 statement of the case and the July 2020 supplemental statement of the case, the Regional Office (RO) essentially conceded that the Veteran had experienced a stressful event in service or fear of hostile. While the RO's decision is not binding on the Board, given the places, types, and circumstances of the Veteran's service, the Board concedes the occurrence of the stressors as well. With regard to a medical opinion as to whether the Veteran has PTSD relating to the conceded stressors, the Board notes that the Court-granted JMR concluded the VA examiner’s opinion in July 2015 was inadequate as it contained contradictory details indicating it was not thorough; thus, it will not be considered herein. As the Veteran did not report for the VA examination scheduled in January 2020, the only competent medical evidence of record speaking to a potential relationship between the Veteran’s stressful events in service and an acquired psychiatric disorder is the March 2015 initial psychiatric assessment by Dr. J. Although the Board initially found this opinion to be inadequate, in this decision, the Board is considering this opinion anew, based on the current evidentiary posture of the appeal. A review of Dr. J.’s March 2015 opinion shows that he conducted an in-depth interview and examination of the Veteran, specifically listed how the Veteran’s symptoms met the criteria for PTSD, thus rendering a diagnosis of PTSD that conformed to the DSM-5, as well as diagnoses of major depressive disorder, and panic disorder. Although Dr. J. did not specifically cite to concurrent VA treatment records, the Board notes that there does not appear to be anything directly contradictory in the VA treatment records, as these records show the Veteran was taking Paxil during the period from at least 2014 through 2015 for depression. Mental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and have taken them into account in making a diagnosis. Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997). As Dr. J. explained the reasons for his diagnoses based on a thorough interview and examination of the Veteran, including the claimed stressors, his opinion is probative and persuasive, and entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The evidence is at least evenly balanced as to whether the Veteran's PTSD, major depressive disorder, and panic disorder, are related to his conceded stressors. As reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for PTSD, major depressive disorder, and panic disorder, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus. The Veteran essentially contends that he has tinnitus due to noise exposure during the Vietnam war, including “firing large 6-inch guns in a box” when he was on a destroyer ship. In a June 2017 letter from a private physician, as well as in contemporaneous private treatment records, it was noted that the Veteran reported having tinnitus “steadily” since service. On the VA examination in August 2017, it was noted that he reported the onset of his tinnitus after he fell from a roof in 2002. Certain chronic diseases, including tinnitus, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. The question for the Board is whether the Veteran has a current disability that began during service, manifested to a compensable degree in service or within the applicable presumptive period, or is at least as likely as not related to an in-service injury, event, or disease. The Board finds that although the Veteran has a current disability of tinnitus, the preponderance of the evidence is against finding that his tinnitus was chronic or manifested to a compensable degree in service or within a presumptive period, or is related to his noise exposure in service. Review of the record includes service treatment records (STR) which show no report or finding of tinnitus. With regard to noise exposure in service, the Veteran's DD 214 shows his MOS (military occupational specialty) was radioman and he served on the USS Alfred A. Cunningham (DD-752). Resolving any doubt in his favor, his reports of exposure to excessive noise in service, including “firing large 6-inch guns in a box” on a destroyer ship, are consistent with the circumstances of his service. Thus, exposure to excessive noise in service is established. Post-service treatment records do not show tinnitus until many years after the Veteran's service, and well outside the applicable presumptive period. In that regard, private treatment records show that in June 2017, a diagnosis of bilateral tinnitus was noted. The Veteran reported continued issues with tinnitus and felt it had actually worsened in the setting of his multiple sclerosis. He reported that tinnitus affected him on a daily basis, and that he first experienced tinnitus when he was in the military, stating he spent a significant amount of time firing large 6-inch guns in a box when he was on a destroyer ship. He reported he had significant issues since that time. In April 2019, the Veteran was seen for follow-up for an unrelated illness, and it was noted that he had a history of head trauma in 2000 when he fell 25 feet and landed on his head and had loss of consciousness for 20 minutes. It was also noted that he continued to have tinnitus. While the Veteran is competent to report experiencing symptoms of tinnitus in and since service, the Board finds his reports of continuity of symptomatology not credible. The only evidence that the Veteran's tinnitus had its onset during service comes from his own statement, which was made in the same time period that he filed this claim for compensation. Moreover, this statement is inconsistent with his report in a March 2005 post-service treatment record in which he denied having hearing loss and tinnitus. The remainder of the evidence consists of his separation examination, which contains no mention of tinnitus, and the 2017 VA examination report in which he indicated the onset of tinnitus was 2002. Given his inconsistent statements as to the onset of his present tinnitus, the Board finds his claim that he has had tinnitus in and ever since his service not to be credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Similarly, the 50-year gap between when the evidence of record demonstrates that the Veteran's tinnitus had its onset and the end of his service precludes a finding of continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a). Having established that the Veteran's tinnitus did not have its onset in service or within one year of service, the Board turns to the question of whether his tinnitus otherwise related to his military service, to include his noise exposure therein. In June 2017 a private doctor, Dr. J.S., confirmed the diagnosis of tinnitus and opined that the Veteran has “reported [tinnitus] steadily since his previous time in the military.” The examiner did not provide any other medical opinion as to whether tinnitus is etiologically related to active duty, to include military noise exposure. As this opinion is only a restatement of the Veteran’s reports of continuity of tinnitus symptoms from active service, and that characterization conflicts with his subsequent reports to a VA examiner, Dr. J.S.’s opinion is not considered probative or persuasive. Nieves-Rodriguez v. Peake, supra. In January 2020, an ACE (acceptable clinical evidence) examination was conducted in order to obtain an addendum opinion in this matter. It was noted that at the prior VA examination, the Veteran reported recurrent tinnitus that had an onset in 2002 after he fell off a roof, and that a private doctor and the Veteran had also reported having tinnitus off and on since service. It was also noted that a 2005 medical report noted the Veteran denied having tinnitus. The examiner reviewed the claims file and opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The examiner provided a lengthy rationale, noting that it was most likely that ringing in the ears prior to 2002 did not qualify as noise-induced tinnitus, and that his denial of having tinnitus was noted in post-service medical records, and that he clearly reported tinnitus had an onset in 2002 when he fell off the roof. The examiner concluded that there was no new evidence to reverse the previous opinion that tinnitus was less likely as not related to military noise exposure, since research was clearly against late onset noise-induced tinnitus, and tinnitus was at least as likely as not related to injury sustained from falling off the roof. The Board finds the VA examiner's opinion from 2020 to be probative and persuasive, because it is based on an accurate medical history and provides a rationale and explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, supra. While the Veteran is competent to report having experienced tinnitus symptoms, he is not competent to provide an opinion as to the etiology of any such symptoms. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). As a lay person, the Veteran's opinion as to the etiology of tinnitus, which involves questions of causation, is not competent medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.