Citation Nr: 21008872 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-13 040 DATE: February 18, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for hypertension is granted. Entitlement to service connection for persistent depressive disorder is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s right ear hearing loss is related to noise exposure during service. 2. The evidence is at least evenly balanced as to whether the Veteran’s hypertension is related to exposure to Agent Orange in service. 3. The evidence is at least evenly balanced as to whether the Veteran’s persistent depressive disorder is related to service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for persistent depressive disorder have been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1971, with service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia which, inter alia, denied service connection for posttraumatic stress disorder (PTSD), hypertension, and right ear hearing loss. In March 2014, the Veteran submitted his notice of disagreement, was issued a statement of the case in February 2015, and in March 2015 perfected his appeal to the Board. The Board notes that in a February 2018 rating decision, the RO granted service connection for unspecified anxiety disorder claimed as PTSD, evaluating it as 30 percent disabling. In February 2019, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In July 2019, the Board remanded the Veteran’s claims for, among one other thing, service connection for hypertension, right ear hearing loss, and a psychiatric disability for new VA examinations. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, service connection will be presumed for certain diseases which are listed at 38 C.F.R. § 3.309 (e), if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service. 38 U.S.C. § 1116 (f); 38 C.F.R. §§ 3.307(a) (6) (iii), 3.307(e). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, navel, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116 (f). 1. Right ear hearing loss The Veteran contends that he suffers from hearing loss due to exposure to heavy artillery, gunfire, explosions, mortar, and helicopter noise during service without proper hearing protection. A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving pure tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence “shall be accepted as sufficient proof of service connection” for certain diseases or injuries, even if “there is no official record of such incurrence or aggravation in such service.” 38 U.S.C. § 1154 (b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (“Section 1154(b) does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected”). The Veteran testified that his right ear hearing loss is a result of acoustic noise exposure during service where he served as a helicopter mechanic. He stated the helicopters are kept near the flight line and the “hooch” where he slept is also not far from the flight line. He stated that as a result, he was exposed to noise from the enemy constantly shooting at the helicopters. On the authorized audiological evaluation in November 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 15 30 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The examiner diagnosed right ear sensorineural hearing loss. The Veteran reported having to ask people to repeat themselves, and stated he has to really pay attention to hear. In an October 2020 disability benefits questionnaire (DBQ), the audiologist opined that the Veteran’s right ear hearing loss was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event or illness, stating that the audiometric results were of poor reliability, thus not valid for rating purposes. The audiologist noted pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 40 55 60 Speech audiometry revealed speech recognition ability of 18 percent in the right ear, but the audiologist noted that the results were inconsistent with organic hearing loss, thus not valid. The audiologist also reported that the use of the speech discrimination score is not appropriate due to language difficulties, cognitive problems, inconsistent speech discrimination scores, etc. The Veteran reported difficulty understanding conversational speech, and stated he has to look at his wife to hear her, or ask her to repeat herself. The Veteran stated that his hearing difficulties were gradual in onset, but began immediately after separation from service. The DBQ indicated that the Veteran worked around aircraft and firearms, and did not use hearing protection. Acoustic trauma due to combat has been accepted as satisfying the in-service disease or injury element of claims for service connected hearing loss. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012); Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran testified that he was exposed to noise from enemy gunfire and explosions as a helicopter mechanic, and his personnel records note service in Vietnam. There is no evidence in the record that shows the Veteran lacks credibility, thus the evidence is at least evenly balanced that the Veteran engaged in combat with the enemy. Gaines v. West, 11 Vet. App. 353, 359 (1998) (evidence submitted to support a claim that a veteran engaged in combat may include the veteran’s own statements and an “almost unlimited” variety of other types of evidence.) See also Sizemore v. Principi, 18 Vet. App. 264, 276 (2004) (Board’s determination of combat status and corroboration of stressors must be made consistent with the benefit of the doubt doctrine). The Veteran is competent to assert the occurrence of an in-service injury, to include noise exposure. Jandreau v. Nicholson, 492 F. 3d at 1376-1377 (Fed. Cir. 2007). Based on the Veteran’s consistent and credible statements of exposure to acoustic trauma while under enemy fire in service in Vietnam, and by applying 38 U.S.C. § 1154(b), the Board concludes that the Veteran sustained acoustic trauma during service. Additionally, the October 2020 audiological examination confirms a current right ear hearing loss disability as the auditory threshold in at least one of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz is 40 dB or greater. The remaining issue is whether there is a nexus between the current right ear hearing loss and in-service noise exposure. The evidence is at least evenly balanced as to whether the Veteran’s current right ear hearing loss is related to in-service noise exposure. While the October 2020 audiologist opined that the Veteran’s right ear hearing loss is less likely than not (less than a 50 percent probability) incurred in, or caused by in-service noise exposure, the audiologist failed to provide a sufficient rationale to support her opinion, simply stating that the results of the examination were invalid. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Therefore, her opinion is inadequate and afforded no probative value. As previously noted, the Veteran has competently and credibly stated that he noticed his hearing loss immediately after separation from service. The fact that the claimed cause of the Veteran’s right ear hearing loss, i.e., acoustic trauma from exposure to weapons firing during combat service, is established by his statements does not prevent him from also invoking the section 1154(b) presumption in order to show that he incurred the disabilities while in service. Reeves, 682 F.3d at 999. Given the application of 38 U.S.C. § 1154 (b) as explained in Reeves, the Veteran’s lay evidence provides a sufficient basis to conclude that his current right ear hearing loss is related to the acoustic trauma he suffered in service. The evidence is thus at least evenly balanced as to whether the Veteran’s right ear hearing loss is related to his in-service noise exposure. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right ear hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Hypertension VA regulations define hypertension as diastolic blood pressure as predominantly 90mm. or greater, and isolated systolic hypertension as systolic blood pressure predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm, and also provide that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, DC 7101, Note 1. Multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies only to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). The Veteran contends that he suffers from hypertension which was caused by exposure to Agent Orange during service in Vietnam. He testified that he has been on medication for hypertension for a long time, but it is unclear for how long. The Veteran’s personnel records reflect that the Veteran had service in Vietnam from March 1969 to March 1970, thus the Veteran is presumed to have been exposed to an herbicide agent. December 2013 VA treatment records reflect blood pressure readings of 160/100, and 156/107. VA treatment records from February 2014, February 2017, and April 2017 reflect blood pressure readings of 153/97, 158/94, and 165/96 respectively. VA treatment records from July 2017 indicate that the Veteran has a diagnosis of hypertension. January 2019 VA treatment records reflect that the Veteran takes medication to treat his hypertension. In a November 2019 DBQ, the nurse practitioner (NP) opined that the Veteran’s hypertension was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, stating that there is no evidence of a chronic diagnosis of hypertension, or service treatment records with evidence of complaints of hypertension symptomatology. In a separate November 2019 DBQ, the NP opined that the Veteran’s hypertension was at least as likely as not (at least a 50 percent probability) incurred in, or caused by the claimed in-service injury, event or illness. The NP noted that the Veteran has been diagnosed with hypertension, and that hypertension is associated with and/or presumed to be associated by the Veteran’s exposure to Agent Orange and/or other herbicides. Thus, the NP opined that the hypertension is at least as likely as not (at least a 50 percent probability) related to service, including as due to exposure to an herbicide agent. The Veteran stated that his hypertension was due to the stress he was under while working as a helicopter crew chief in service, working in bunkers for several hours preparing for combat. The Veteran’s blood pressure readings were: 130/90, 140/90, and 140/80. For the following reasons, the Board finds that entitlement to service connection for the hypertension is warranted. The VA treatment records provide a diagnosis of hypertension, including blood pressure readings with a diastolic blood pressure predominantly 90mm. or greater, thus the Veteran has met the current disability requirement for service connection, and Agent Orange exposure has been established due to the Veteran’s service in Vietnam. The dispositive issue is whether there is a nexus between the two. Hypertension is not among the diseases listed at 38 C.F.R. § 3.309 (e) upon which service connection can be granted on a presumptive basis due to exposure to Agent Orange. However, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, the November 2019 NP opined that the Veteran’s hypertension was less likely than not incurred in or caused by service, but primarily based that opinion on a lack of treatment for hypertension in service which is an impermissible based upon which to deny service connection. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on the Veteran’s report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). The November 2019 NP additionally opined that the Veteran’s hypertension was at least as likely as not (at least a 50 percent probability) incurred in, or caused by an in-service injury, event, or illness, stating that hypertension is associated with the Veteran’s exposure to Agent Orange or other herbicides. While the November 2019 NP’s rationale was not extensive, the NP found that the nature of the Veteran’s military service and events that occurred therein, and subsequent symptoms, made it likely that they had resulted in his current hypertension. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Thus, there is both a positive and negative nexus opinion provided by the same NP. While the Board could remand for a new VA examination, doing so could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand for additional development, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The evidence is, thus, at least evenly balanced as to whether the Veteran’s hypertension was caused by exposure to Agent Orange in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for hypertension is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Persistent depressive disorder The Veteran contends that he suffers from PTSD as a result of his active duty service. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court explained that in determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court’s decision in Clemons, the Board has recharacterized the claim for PTSD as a claims entitlement to service connection for persistent depressive disorder as stated on the title page of this decision. This will provide the most favorable review of the Veteran’s claim in keeping with the Court’s holding in Clemons. The Board acknowledges that the Veteran is currently service connected for unspecified anxiety disorder. However, under Clemons, the Board has jurisdiction to address all psychiatric disorders when adjudicating a claim for PTSD. There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM 5) criteria, in accordance with 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304 (f). The Board notes that the DSM-IV has been recently updated with a Fifth Edition (DSM-V). Effective August 4, 2014, VA issued a rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with DSM-V. The provisions of the rule only apply, however, to all applications received at the Agency of Original Jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to or pending before the Board, the Court, or the United States Court of Appeals for the Federal Circuit (Federal Circuit). 79 Fed. Reg. 45,093, 45,094-096 (Aug. 4, 2014). The Veteran’s psychiatric claim was pending before the Board prior to that date. A January 2013 PTSD Stressor Decision indicated that the Veteran was more likely to have been in a location that would involve hostile military or terrorist activity and was in fear of his life, therefore the Veteran’s stressor is conceded. A March 2013 VA examination note indicated that the Veteran did not have a diagnosis of PTSD which met the criteria under DSM-IV. The examination report indicated that the Veteran reported 1 or 2 symptoms suggestive of PTSD, but that those symptoms do not come close to reaching criteria for the diagnosis of PTSD. The Veteran’s stepson and wife both indicated that the Veteran suffered from nightmares daily, avoided large groups, and never sat with his back to a window or door. July 2014 VA medical records note that the Veteran has a diagnosis of PTSD from a VA licensed psychologist as well as a diagnosis of persistent depressive disorder, thus the first criteria for service connection has been met. A January 2018 DBQ indicated that the Veteran did not have a diagnosis of PTSD that conforms to DSM-5 criteria. The psychiatrist noted that the Veteran does not describe avoidance symptoms which is a DSM-5 criterion for the diagnosis of PTSD. A June 2019 Psychology Group Counseling note reflected that the Veteran had a diagnosis of PTSD. In a November 2019 DBQ, the examining psychologist noted that the Veteran’s symptoms did not meet the DSM-5 criteria for a diagnosis of PTSD, thus the claimed condition was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The psychologist noted a diagnosis of persistent depressive disorder, and reported that the Veteran indicated that he is reminded of his experiences in service when he hears a helicopter or loud noises. The Veteran reported mortar rounds almost every night in service, Vietnamese trying to cross the bunker line, and his helicopter going down a couple of times away from the home base. He also reported seeing a fellow servicemember getting wounded while sitting in the helicopter. The psychologist noted that the Veteran’s persistent depressive disorder was a progression of the Veteran’s service connected anxiety disorder, and that the symptom of anxiety is subsumed under the diagnosis. The psychologist opined that the Veteran’s persistent depressive disorder was at least as likely as not (at least a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, noting that the Veteran had no mental health issues prior to service, but now has clear symptoms of persistent depressive disorder caused by service. In a November 2020 addendum opinion, the psychologist stated that the Veteran’s persistent depressive disorder was less likely than not (less than a 50 percent probability) related specifically to the injury in service when the Veteran cut his hand on a 55 gallon drum on the way into the bunker in response to a mortar attack. She reported that the Veteran’s depressed mood was more general in nature, and he did not relate his depressed mood to any injuries or medical conditions during the examination. The evidence is at least evenly balanced as to whether entitlement to service connection for persistent depressive disorder is warranted. While the November 2019 psychologist opined that the Veteran’s persistent depressive disorder was less likely than not due to the in-service event when the Veteran cut his hand, she also opined that the Veteran’s persistent depressive disorder was at least as likely as not incurred in or caused by service, noting no mental health issues prior to service. While the psychologist’s rationale was not extensive, reading her opinion as a whole and in the context of the evidence of record, she found that the nature of the Veteran’s military service and events that occurred therein, and subsequent symptoms, made it likely that they had resulted in his current persistent depressive disorder. See Monzingo, 26 Vet. App. at 106; Acevedo, 25 Vet. App. at 294. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s persistent depressive disorder is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for persistent depressive disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The evidence of record indicates that the Veteran has been diagnosed with PTSD in addition to persistent depressive disorder. Notably, the VA examiners, psychiatrists, and psychologists did not differentiate between symptomatology associated with the Veteran’s persistent depressive disorder and his PTSD, and in fact concluded that he did not meet the criteria for PTSD. As the Veteran will therefore be compensated for all of his psychiatric symptoms, the Board will not separately adjudicate a claim for service connection for any other psychiatric disorder. 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). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.