Citation Nr: 21011278 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-35 793 DATE: March 1, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 30 percent is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, her tinnitus is at least as likely as not related to exposure to harmful noise in service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1973 to October 1976. In August 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 1990). 1. Entitlement to service connection for tinnitus The Veteran contends that she has tinnitus related to her active duty service. At the outset, the Board acknowledges that the Veteran has been diagnosed with tinnitus. See April 2017 VA examination. In addition, the Board also acknowledges that the Veteran has credibly reported suffering from noise exposure during her military occupational specialty that could affect her hearing and cause hearing impairment. See Hearing Transcript; DD 214. As such, the question for the Board is whether there is a causal relationship between the Veteran’s active service and her tinnitus. The Veteran underwent a VA examination in April 2017. At that examination, the examiner diagnosed the Veteran with tinnitus. The examiner determined that the Veteran’s tinnitus was less likely than not related to service. The examiner reasoned that the Veteran’s military occupational specialty was indicative of low noise exposure, although the Veteran indicated that she worked in a loud environment. The examiner reasoned that despite this report, the Veteran had normal hearing from enlistment to separation, and did not report ringing in her ears at any medical examination. Therefore, it was considered less likely than not that her tinnitus was due to her military service. At the Veteran’s August 2020 hearing, she testified that when she enlisted in 1973 there was no ear protection. At her basic training, before getting to her workstation, she explained that at Parris Island, South Carolina, there was weapons training. Prior to entering the service, she did not have tinnitus. The Veteran explained that during service in her position as a payroll clerk at Camp Pendleton, she volunteered to ride around a jeep to places where there was infantry training and amphibious tanks would enter the water, and come out. On these expeditions, the Veteran testified that there was live ammunition being shot. This is how the Veteran would perform her duty and hold payroll. She was out in the field providing money to other servicemembers as part of her job in payroll. At other points during service, she testified that she would be in her office in Camp Pendleton and there was no air conditioning. As such, the office windows would be kept open. During these times, the Veteran reported having to shout at coworkers because it was so loud outside with traffic going by. At the end of the day, she remembered ringing in her ears and headaches. She did not talk about this at the time because she was a young person, and just thought that it was loud. She testified that at the end of the day, she would often take something for the pressure in her head or headaches. At the time, she just felt that it was a hard day. At discharge, she remembered that her ears were ringing on and off, and that it has been with her as long as she could recall as an adult. The Veteran testified that she is a person who pretends that she hears a lot more than she actually does. She testified that it had been a problem, but she did not realize for a while. After service, the Veteran reported that she worked mostly office jobs and that she did not have any noisy jobs like what she did in the service. She also testified that after service, it took her a long time to apply for benefits because non-VA doctors would tell her the ringing in her ears was normal, or potentially due to an ear infection. Those doctors would explain there was no treatment for ringing in the ears. She also testified that she was aware she could not hear well because on the phone in the office she would have to have the volume on max. The Veteran did not receive health care from the VA until 2015. The Veteran testified that at her entrance examination, she simply said she could hear. Similarly, she testified that her exit examination was much the same, as it was a checklist in an office and then she was noted as fit to be discharged. Regarding the Veteran’s tinnitus disability, the Board notes that the Veteran is competent to discuss observed physical symptoms, such as ringing in her ears. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (“ringing in the ears is capable of lay observation”). Tinnitus, moreover, is a disorder uniquely ascertainable by the senses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That is, tinnitus is defined as a ringing in the ears, a finding that can be determined by the Veteran’s reporting of the condition. Although the April 2017 VA examiner’s nexus opinion was negative, the Board notes that the Veteran has consistently reported that she first experienced tinnitus in service, and that she has experienced tinnitus since service. As discussed above, the Veteran is competent to testify as to her observed symptoms. The Board finds that the Veteran’s assertions are credible. Accordingly, the most probative evidence of record is at least in equipoise as to whether the Veteran’s noise trauma in service resulted in her tinnitus and service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to an initial rating for PTSD in excess of 30 percent is remanded. The Veteran contends that she should be awarded a higher rating for her service-connected PTSD. At the Veteran’s August 2020 hearing, she testified that she did not believe that her April 2017 VA examination was adequate. She explained that she felt as though the examiner had an agenda that he was following, and he did not hear or see her; he did not ask her how she was doing as far as her current situation and how her past events applied to her currently. Rather, she explained, the examiner seemed to inquire only about the past events. The Veteran continued, stating that the examiner was in a hurry and did not seem to want to hear about her current distress, panic, and phobia, and how these symptoms were directly related to the assault she suffered in the Marine Corps. At the end of the examination, the Veteran asked if she could speak freely and add information, and the examiner said he had enough information. The Veteran testified that her feelings of anxiety, panic, and depression impacted her daily life, as well as impairing her employability because she was too afraid to do certain things. She testified that she experiences panic attacks during the daytime 2 to 3 times a week, as well as often at night because her incident occurred at night At times when she cannot sleep, she is anxious and panicky. This anxiety can prohibit her from driving, causing her to pull over. The Veteran also testified that she experienced suicidal ideation, explaining that she often thinks about it, and thinks about what would happen if she did. She stated that she always feels under stress, and sometimes she thinks it would not be too bad. In her work environment, the Veteran testified that she always knows where the exit is, when she is going to come in, when she is going to leave, who she will be working with, and so on as to avoid anything unexpected happening. If something unexpected does happen, the Veteran goes into hypervigilant mode, fight or flight. She shuts down and cannot talk; she explained that she does not handle stress well. She testified that she did have friends, but they were social in nature only, and did not actually speak or talk. In reality, she stated she did not think she had one friend. The Veteran also testified that since her 2017 VA examination, she had continued counseling and believed that her condition had gotten worse. She described her depression as worse, and that it was challenging for her to pick up her phone to text or call. She described feeling a lot of sadness and more anxiety and stress than before. Where a Veteran contends, or the record otherwise indicates, that a disability has worsened since the last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2019); see also Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In this case, given the above statements of worsening and additional symptoms in recent evidence, a new VA examination is warranted to determine the current severity of the Veteran’s service-connected PTSD. As such, the Board will remand the Veteran’s claim for an increased initial rating for PTSD. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Board notes that the Veteran has been diagnosed with bilateral hearing loss and has credibly reported in-service noise exposure. The remaining issue for the Board is determining whether the Veteran’s bilateral hearing loss was caused by her service. During the Veteran’s August 2020 Board hearing, she testified that after service, it took her a long time to apply for benefits because non-VA doctors would tell her the ringing in her ears was normal, or potentially due to an ear infection. Those doctors would explain there was no treatment for ringing in the ears. She also testified that she was aware she could not hear well because on the phone in the office she would have to have the volume on max. The Veteran did not receive health care from the VA until 2015. The Veteran testified that at her entrance examination, she simply said she could hear. She testified that her exit examination was much the same, as it was a checklist in an office and then she was noted as fit to be discharged. In her April 2017 VA examination, the examiner determined that the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner reasoned that the Veteran had normal hearing from enlistment in 1973 to separation in 1976. The examiner did not provide any other rationale. The Board finds that the April 2017 opinion is inadequate to fairly adjudicate the Veteran’s claim. The VA opinion relies on the absence of documentary evidence as a rationale for the negative nexus opinion. The examiner also does not appear to have considered the Veteran’s statements as to her in-service noise exposure and decrease in hearing acuity, of which she is competent to report. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The VA examiner’s opinion lacked explicit consideration of the Veteran’s lay statements regarding any onset of hearing loss during or directly after service, and as such, renders such opinion incomplete for adjudication purposes. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA treatment records and private medical records relevant to the Veteran’s claims. 2. After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who provided the April 2017 VA opinion regarding the Veteran’s bilateral hearing loss. The record and a copy of this Remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. If the April 2017 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. 3. Following a review of the entire record, to include the Veteran’s lay statements concerning her in-service noise exposure, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hearing loss had its onset during, or is otherwise related to, her active duty service, to include exposure to ammunition firing and road traffic. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. 4. Regarding the Veteran’s PTSD, after all outstanding records have been associated with the claims file, provide the claims file to an appropriate clinician. The record and a copy of this Remand must be made available to the examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should identify any findings related to the Veteran’s PTSD and fully describe the current extent and severity of those symptoms. The examiner should also comment on the functional impairment resulting from the Veteran’s service-connected PTSD. The examiner is asked to provide information as to the occupational and social impairment caused by the Veteran’s PTSD symptoms with regard to her ability to perform tasks and her ability to maintain work and social relationships. The examiner is asked to consider all lay statements made by the Veteran and to explain the reasons behind any opinions expressed and conclusions reached. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.