Citation Nr: 21007554 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-22 556 DATE: February 9, 2021 ORDER Entitlement to service connection for an acquired psychiatric condition other than posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, it is at least as likely as not that the Veteran’s psychiatric disorder other than PTSD is etiologically linked to his active duty service. 2. The Veteran’s PTSD stressors are not verified. 3. The Veteran’s bilateral hearing loss is etiologically linked to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder other than PTSD have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303. 2. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303. 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1975 to January 1979. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by the Agency of Original Jurisdiction (AOJ). The matter was previously before the Board in July 2018. The appeal was remanded for addendum medical opinions as to the nature and etiology of the Veteran’s acquired psychiatric disability and bilateral hearing loss. Addendum opinions were associated with the file in August 2019. The Board finds that the August 2019 medical opinion as to the Veteran’s acquired psychiatric disability is supported by sufficient rationale. Thus, the Board determines that there has been substantial compliance with the July 2018 remand directives as to that claim and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The Board find the examiner’s opinion as to bilateral hearing loss inadequate. However, in light of the full grant of benefits awarded herein, further remand is not required. 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; 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). There are particular requirements for establishing service connection for posttraumatic stress disorder (PTSD). 38 C.F.R. § 3.304 (f); Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence of an in-service stressor; and (3) a link, established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304 (f). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for an acquired psychiatric condition to include PTSD The Veteran contends that he has PTSD as a result of being shot at by a sniper and being knocked unconscious following a power unit explosion during active service. In the instant case, the record reflects a May 2019 diagnosis of PTSD. Turning to the Veteran’s claimed stressors the Board finds there is no credible supporting evidence that the claimed stressors actually occurred. The Board has reviewed the Veteran’s records in their entirety and independently finds that the evidence does not establish that the Veteran’s unit came under fire in New York in March 1976. The Veteran’s report that he was knocked unconscious following a power unit explosion is similarly uncorroborated by independent evidence as his STRs are void of any evidence of treatment for such an injury. Where, as here, a claimed stressor is not related to combat, a veteran’s lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the Veteran’s testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors as there is no VA examiner who found them to serve as a basis of the diagnosis consistent with 38 C.F.R. § 3/304(f). See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Cohen v. Brown, 10 Vet. App. 128, 142 (1997). The Board finds there is no credible, reliable, persuasive, or probative evidence in the record that either of the Veteran’s claimed in-service stressors occurred. Thus, the preponderance of the evidence is against the claim for service connection for PTSD. The Board acknowledges that the U.S. Court of Appeals for Veterans Claims has held that when a veteran claims service connection, he or she is not claiming service connection for a specific diagnosis but for his or her symptoms regardless of the diagnosis, and the claim encompasses the underlying condition regardless of diagnosis. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). As such, the Board has considered whether service connection may be granted for conditions other than PTSD. In August 2019, a VA examiner diagnosed the Veteran with unspecified anxiety disorder. Following an assessment in November 2020, K. G., Ph. D. diagnosed the Veteran with unspecified anxiety disorder and alcohol use disorder, in remission. Therefore, the first element of service connection is met. Turning to an in-service incurrence, the Veteran competently and credibly reported feeling overwhelmed by the high-risk work he engaged in during service in which there was “no room for failure”. He feared he would not live up to the expectations of him. See November 2020 Private Examination. The Veteran also reiterated the stressors addressed in his PTSD claim. A review of the Veteran’s STRs and military personnel records show that his psychiatric functioning was noted to be normal in his August 1974 enlistment examination. The Veteran also denied having any psychiatric complaints in the August 1974 Report of Medical History. However, the Veteran endorsed frequent trouble sleeping and nervous trouble in his November 1978 separation Report of Medical History. Regarding the Veteran’s claimed in-service incident, the Board notes the Veteran is competent to report details that he directly experienced and observed during service. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). The Board also notes the November 2020 private psychologist found it at least as likely as not that the Veteran experienced high levels of stress due to his occupation in the military. Therefore, the sole remaining issue is nexus for which conflicting opinions have been provided. The Veteran was afforded a VA examination for Mental Disorders in March 2011. Additionally, the Veteran submitted a private psychological assessment in August 2015. The Board found the opinions associated with both inadequate in its July 2018 opinion. As noted, the Veteran underwent a new VA examination in August 2019. The August 2019 VA examiner found it less likely than not that the Veteran’s current symptoms were related to his service. The Board finds this opinion somewhat probative. The examiner conceded that the Veteran was treated for psychiatric symptoms following service but reasoned that the Veteran’s examination results revealed some level of malingering. Moreover, the examiner noted that the medical evidence did not support that the Veteran’s symptoms manifested in service. The examiner questioned the Veteran’s credibility and provided support for her unwillingness to rely on lay statements to support a nexus. Specifically, the examiner noted that the Veteran’s reports were inconsistent during her examination. In November 2020, Dr. K.G. opined that the Veteran’s symptoms appeared strongly linked to stress he experienced while in service. The private doctor acknowledged review of the Veteran’s file and addressed inconsistencies in the record. Dr. K.G. noted that the Veteran did not have any psychological symptoms when he entered service but endorsed several upon separation. Moreover, the Veteran had long been treated for psychological symptoms after service, which Dr. K.G. found was indicative of a true disorder rather than malingering. Dr. K.G. reasoned that the expectations and rigor of the military likely caused the Veteran’s already shaky confidence due to childhood trauma to evolve into a mild anxiety disorder. The Board finds that this determination is probative as Dr. K.G. indicated that she had considered relevant military personnel records as well as her clinical evaluation of the Veteran in rendering a diagnosis. Moreover, the private doctor explains her reliance on the Veteran’s lay statements by pointing out that they are, in some ways, corroborated by the record. As there is no reason shown to weigh one opinion over the other, the medical evidence as to a nexus is relatively equally balanced. Based on the foregoing, the Board finds the issue of nexus is at least in equipoise. Thus, resolving all reasonable doubt in favor of the Veteran, entitlement to service connection for a psychiatric disorder is granted. The Board notes that while personality disorders are noncompensable, neither examiner was able to differentiate between symptomatology associated with the Veteran’s anxiety and personality disorders. Conley v. Peake, 543 F.3d 1301, 1305 (Fed. Cir. 2008). The Veteran will therefore be compensated for all of his psychiatric symptoms. Mittleider v. West, 11 Vet. App. 181 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). 2. Entitlement to service connection for bilateral hearing loss For the purposes of applying the laws administered by VA, 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 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. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Turning to the evidence of record, the Veteran received a VA audiological examination in August 2019. The examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10db 15db 15db 25db 50db LEFT 10db 15db 15db 25db 50db Speech recognition was 94 percent bilaterally. These results indicated that the Veteran’s hearing impairment reached the level of a disability. See 38 C.F.R. § § 3.385. The Veteran’s in-service noise exposure is already established as he is currently service connected for tinnitus due to in-service noise exposure. Thus, the remaining issue is a nexus. The Veteran was afforded a VA examination in April 2010. Because the examination did not reveal a hearing disability for VA purposes, the issue of nexus was not reached. However, the examiner did note apparent threshold shifts in the Veteran’s service treatment records. As noted, the August 2019 VA examination revealed a bilateral hearing disability. The August 2019 VA examiner provided a negative opinion. However, the Board does not find the opinion adequate. The examiner noted that the Veteran’s hearing was within normal limits at enlistment and separation, and there were no documented threshold shifts during service. The examiner’s opinion failed to adequately address apparent threshold shifts evidenced by November 1977 and August 1978 in service hearing examinations. Thus, the Board finds the opinion is of limited probative value. While there is no positive opinion of record linking the Veteran’s hearing loss to his active service, the Veteran has indicated, in sum, that he has been suffering from symptoms of bilateral hearing loss starting in service and continuing to the present day. In weighing the Veteran’s statements, the Board notes that he is competent to assert the presence of symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also has no reason to doubt the credibility of the Veteran’s statements and as such finds them probative. Given the Veteran’s credible statements of continuing symptoms and the lack of an adequate negative nexus opinion, the Board finds that service connection for bilateral hearing loss is warranted. See 38 C.F.R. § 3.303 (a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence). Accordingly, the appeal for service connection for left ear hearing loss is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman Associate Counsel 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.