Citation Nr: 21007674 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-41 579 DATE: February 10, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and adjustment disorder with anxiety is remanded. FINDING OF FACT The Veteran’s tinnitus is related to noise exposure during service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1961 to May 1965. This matter comes to the Board of Veterans’ Appeals (Board) on an appeal from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Newman, Georgia, the Agency of Original Jurisdiction (AOJ). In the rating decision, the AOJ denied service connection for posttraumatic stress disorder, bilateral hearing loss, and tinnitus. The Veteran appealed this determination and the present appeal ensued. In December 2018, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s claims file. This matter was previously before the Board in May 2019 at which time it was remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, service connection may be established 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. 38 C.F.R. § 3.303 (b). To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. The use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309 (a). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303 (b) is available for sensorineural hearing loss and tinnitus as organic diseases of the nervous system. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, a disability due to impaired hearing may be considered if the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 1. Entitlement to service connection for tinnitus The Veteran has asserted that his tinnitus is related to noise exposure during service. Review of the Veteran's service treatment records indicate no complaints or treatment of tinnitus. The Veteran’s military occupational specialties during service were electrician’s mate and fireman. Each of these occupations has a moderate probability of hazardous noise exposure. The Veteran stated that he performed his duties and stood watch in noisy boiler rooms and diesel engine rooms without hearing protection. A 2004 VAMC audiology examination indicated that the Veteran reported that he had experienced tinnitus in the 1970s of unknown etiology, possibly related to stress. The Veteran was afforded a VA examination in April 2016. The examiner noted that the Veteran did not complain of tinnitus at the time of the examination but also noted the 2004 audiology examination during which he asserted he experienced tinnitus in the 1970s. She noted that the Veteran has not reported tinnitus since that examination. The examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran’s tinnitus is caused by or a result of military noise exposure. Apparently concluding that there was no diagnosis of tinnitus, the examiner did not provide any further analysis. Tinnitus is a chronic disease afforded a relaxed standard where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Tinnitus is a disorder uniquely discernable by the senses. The Board notes that the Veteran is competent to diagnose tinnitus, i.e., ringing of the ears, on the basis of his own lay assertions. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). During his December 2018 hearing, the Veteran testified that he does not recall when he first experienced ringing in his ears. He also stated that he can’t tell whether he still has ringing in his ears because “If I do, I’ve gotten used to it.” He testified that he served on one ship from November 1963 to May 1965. He testified that he experienced exposure to loud noise during service in the boiler room and the engine room. He also testified that when he stood general quarters watch, he was close to the guns on the rear of the ship, which would be fired during practice. He acknowledged that a combination of noise exposure during service and occupational noise after service both contributed to his hearing loss. This evidence was not available to the VA examiner in 2016. The Veteran's statements regarding in-service noise exposure are consistent with the circumstances of the Veteran's service and his personnel records. Further, this disorder is a chronic disorder, which may be linked to service by way of credible reports of a continuity of symptoms since service. Thus, the Veteran’s statements of the existence of this disability since as early as 1970, even with his statements of being unsure whether it has continued since then because he may have “gotten used to it,” are sufficient to link such disability to service. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is therefore warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss The Veteran has asserted that his bilateral hearing loss is related to hazardous noise exposure during service. The Veteran was diagnosed with bilateral sensorineural hearing loss in an April 2016 VA examination. Audiological testing results indicated: HERTZ 1000 2000 3000 4000 Average RIGHT 30 50 55 60 48.75 LEFT 40 55 60 65 55 His speech discrimination score (Maryland CNC word list) was 92% right ear and 94% left ear. The Veteran reported a history of military noise exposure. The Veteran’s military occupational specialties (MOS) during service were electrician’s mate and fireman. Each of these occupations has a moderate probability of hazardous noise exposure. The Veteran stated that he performed his duties and stood watch in boiler rooms and diesel engine rooms without hearing protection. He stated that following four-hour shifts he would be unable to hear through a communications headset. The Veteran’s enlistment examination and discharge examination contained only “whisper” testing. Service treatment records do not contain complaints, diagnosis, or treatment of hearing loss or tinnitus. Post-service occupational noise exposure was noted as construction work, with the use of hand tools and saws without hearing protection. The April 2016 examiner opined that the Veteran’s hearing loss is less likely than not caused by or a result of service. The Veteran reported that during general quarters he attended to diesel engines in an area that was very small quarters and very noisy. He stated that he could not hear from communication headsets after the diesel checks. The examiner noted that the Veteran’s service treatment records are silent for complaints of hearing loss and the Veteran entered and exited service with normal bilateral hearing per whisper voice tests. The examiner noted the Veteran’s 40-year history of vocational noise exposure as a construction worker. The examiner found that the nexus with military service was “far less than a 50/50 probability relationship compared to his exposure to hazardous noise in civilian life.” The examiner noted that the Veteran first sought hearing evaluation in 2004 and reported that hearing loss had been diagnosed 8 years earlier, 31 years post-service. The examiner noted that the Veteran stated his hearing loss is due to “old age.” The examiner found delayed hearing loss unlikely, citing the 2005 Institute of Medicine's study: Noise & Military Service: Implications for Hearing loss and Tinnitus which indicated there is insufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. She also cited the study for the proposition that although definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. The Board finds this opinion was inadequate. The Veteran’s enlistment and discharge hearing examinations consisted only of “whisper” testing. Whisper testing is not sufficient to determine audiological thresholds and is not a reliable scientific test for hearing loss. Further, entitlement to service connection for a current hearing loss disability under 38 C.F.R. § 3.385 is not precluded where the Veteran's hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Although hearing loss was not shown in-service, acoustic trauma or military noise exposure may constitute injury of the ear. The examiner did not adequately address the Veteran’s lay statements reporting hearing loss during service in that he was unable to hear on communication headsets following exposure to noise. The possibility of permanent hearing loss related to that temporary hearing loss was not addressed. Nor did the examiner adequately consider the duties encompassed by the Veterans MOS of electrician’s mate and fireman and circumstances of his service, which subjected the Veteran to moderate noise exposure. 38 C.F.R. § 4.2. Further, while the Veteran stated that his current hearing loss is due to “old age,” although the Veteran is considered competent to report his symptoms, he is not competent to diagnose the cause. The examiner noted the passage of years between service and diagnosis of bilateral hearing loss, however, evidence of a current hearing loss disability under 38 C.F.R. § 3.385 and medical evidence sufficient to attribute that disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). In addition, the examiner offered no rationale for her finding that military noise exposure was a “far less” probable cause than vocational noise exposure for the Veteran’s hearing loss. The examiner did not explain how repetitive high noise levels experienced in boiler rooms and diesel engine rooms are less likely to cause hearing loss than construction tools, especially considering that the Veteran served for more than 18 months on one ship performing the same duties. As to delayed hearing loss, while the examiner cited a 2005 study noting “it is unlikely that such delayed effects occur,” she acknowledged that definitive studies have not been performed. The IOM did not rule out that delayed onset hearing loss can occur due to the lack of such studies. The Board notes the Court's holding in McCray v. Wilkie, No. 17-1875 (June 18, 2019) that "a medical text's qualifying or contradictory aspects may affect the probative value and adequacy of any ensuing medical opinion that relies on the text." The Veteran also testified at a hearing in December 2018. He testified that he was assigned to one ship during his service, a destroyer, and that he served on the ship from November 1963 to May 1965. He stated that every time a carrier went out, the destroyer went out with the carrier. He testified that he experienced exposure to loud noise during service, specifically noting the boiler room and the engine room. He also testified that when he stood general quarters watch, he was close to the guns on the rear of the ship, which would be fired during practice. He acknowledged that a combination of noise exposure during service and occupational noise after service both contributed to his hearing loss. The Board finds than a new VA examination and opinion are necessary to consider all of the evidence of record. 2. Entitlement to service connection for an acquired psychiatric disorder to include PTSD and adjustment disorder with anxiety is remanded. As an initial matter, the Board notes a claim for PTSD cannot only be limited to that diagnosis, but must be considered a claim for any mental disability that may be reasonably raised by several factors, to include the Veteran’s description of the claim and/or symptoms and any information and evidence submitted by the veteran or obtained by VA. Clemons v. Shinseki, 23 Vet. App. 1 2009). The Veteran was diagnosed with adjustment disorder with anxiety in April 2017. The Board has therefore recharacterized the issue on appeal. Next, the Board notes that a formal finding of a lack of information required to corroborate stressor(s) associated with the Veteran’s claim for PTSD was issued on March 21, 2016. VA further determined that the information required to corroborate the stressful event described by the Veteran is insufficient to send to the U.S. Army and Joint Services Records research Center (JSRRC) and insufficient to allow for meaningful research of National Archives and Records administration (NARA) records. Multiple PTSD screenings have been negative for a diagnosis of PTSD. Treatment records do not mention any diagnosis, treatment or complaints of PTSD. The Veteran denied symptoms of PTSD during the December 2018 hearing. The Board will therefore focus the appeal on the Veteran’s diagnosed adjustment order with anxiety. The Veteran has asserted that his acquired psychiatric disorder is related to his service. He stated that he would go down into submarines in very tight quarters to work on batteries, crawling on his belly on top of the batteries and cables which would be sparking and could have exploded. An examination was conducted by a private provider in April 2017. The Veteran was diagnosed with an adjustment disorder with anxiety. The examiner noted that the Veteran had no mental health symptoms prior to service. She noted symptoms of chronic sleep impairment, mild memory loss, impairment of short-term and long-term memory flattened affect, disturbance of memory and mood, impaired impulse control such as unprovoked irritability with periods of violence. The Veteran reported overwhelming feelings of anger due to respiratory problems that hinder his ability to move around. He stated that his anger gets out of control. The Veteran reported that during service in the Navy, he was ordered to go down into the hull of a submarine to work on batteries in a very confined area. He stated that the area smelled of battery acid and it bothered him to go down there. He often came out soaked with acid and feeling very warm. The examiner provided an opinion that it is more likely than not that the Veteran’s adjustment disorder with anxiety is secondary to his diagnosed respiratory problem. At that point in time, the issue of service connection for a respiratory problem was being appealed separately. Therefore, the issue of service connection for an acquired psychiatric disorder was held in abeyance because the private opinion provided a link between the Veteran’s acquired psychiatric disorder and his respiratory disorder. In its May 2019 decision, the Board remanded for further development of the record for the issues of entitlement to service connection for a respiratory disorder, to include as a result of exposure to battery acid and ammonia; bilateral hearing loss; tinnitus; and an acquired psychiatric disorder, to include PTSD and adjustment disorder with anxiety. The Board also noted that the record contains an opinion linking a psychiatric disorder to the Veteran’s respiratory disorder. As a result, any action with respect to the Veteran’s psychiatric disorder claim was held in abeyance pending the completion of the action requested for the Veteran’s claim for service connection for a respiratory disorder. The Veteran was then service connected for chronic obstructive pulmonary disorder in a separate rating decision dated November 2020, now part of a different appeal stream. As noted, there is a private opinion linking that newly service-connected disability to his claimed acquired psychiatric disorder. A remand is therefore required for a new examination and opinion. VA must afford a Veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c) (4). Pursuant to the factors outlined in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board finds that further examination is required before the Board can make a decision on the merits of the Veteran’s acquired psychiatric disorder claim. The matters are REMANDED for the following action: 1. The AOJ must request that the Veteran be scheduled for a VA audiological examination to determine the nature and etiology of his bilateral hearing loss. The complete file must be made available to the examiner for review in conjunction with the examination. The examiner is requested to provide an opinion concerning whether the Veteran's bilateral hearing loss is at least as likely as not proximately due to or the result of the Veteran's in-service noise exposure. The examiner should address all of the evidence of record, including the Veteran’s lay statements and testimony during the December 2018 Board hearing. 2. Thereafter, the AOJ should request an examination to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. The examiner is requested to provide these opinions: a. Whether the Veteran’s acquired psychiatric disorder is at least as likely as not caused by or a result of the Veteran’s service. b. Whether the Veteran’s acquired psychiatric disorder is at least as likely as not caused or aggravated by the Veteran’s service-connected COPD disability. The examiner should provide a complete rationale for all opinions. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.