Citation Nr: 21011475 Decision Date: 03/02/21 Archive Date: 03/01/21 DOCKET NO. 17-17 299 DATE: March 2, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a dental disorder for compensation purposes is remanded. Entitlement to service connection for residuals of a dental injury for treatment purposes is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran meets the DSM-V criteria for PTSD which was at least as likely as not caused by his verified in-service stressor. 2. Resolving all reasonable doubt in his favor, the Veteran has a bilateral hearing loss disability for VA purposes that was at least as likely as not caused by in-service acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). 2. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from January 2005 to July 2005 and again from May 2006 to March 2008. He testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing in August 2020. A transcript of the hearing is of record. Service Connection 1. Entitlement to service connection for PTSD. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge will still be service connected if all 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 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). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The sufficiency of a stressor is a medical determination and is presumed by a medical diagnosis of PTSD. Cohen, 10 Vet. App. at 140. Section 3.304(f)(2) provides that in the absence of clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the occurrence of the claimed in-service stressor may be established by the veteran’s lay testimony alone where the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat. 38 C.F.R. § 3.304(f)(2). Additionally, if a stressor claimed by a Veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). The Veteran contends that service connection is warranted for PTSD. He has identified several stressors including frequent exposure to mortars. He reported one instance where a mortar exploded 40-50 feet from him against a Humvee on Thanksgiving Day. He and others were playing football and a mortar landed, but did not explode, otherwise all of them would have been killed. Instead, the mortar bounced and landed against a Humvee where it detonated. He also reported an IED killing a good friend of his who was 19 years old on a convoy. The Veteran’s service personnel records provide evidence of his service in Afghanistan from January 2007 through January 2008 in support of Operation Enduring Freedom. In addition, the Veteran has submitted a statement from a fellow soldier, M.J.D., in support of his claim. Given the Veteran’s combat service, his stressor is conceded. On VA examination in February 2017, the examiner found that the Veteran’s experiences in Afghanistan, related to fear of hostile military or terrorist activity, met Criterion A (i.e. it is adequate to support the diagnosis of PTSD). The February 2017 VA examiner ultimately found, however, that the Veteran did not meet the diagnostic criteria for a PTSD diagnosis and instead diagnosed the Veteran with opioid use disorder, sustained remission. As rationale, the examiner stated: Although the Veteran has been diagnosed with PTSD previously, a review of military records, the clinical exam, and psychological/cognitive testing including the presence of negative impression management do not corroborate a diagnosis of PTSD. Psychological symptoms have been temporally related to problematic marriage relational issues and opioid use problems. Although the examiner noted that the Veteran’s opioid use began within one year of his discharge from service, he did not address the Veteran’s contentions that he began to use opiates as a way to cope with his psychological symptoms. A private medical opinion has been submitted in support of the Veteran’s claim. In July 2020, a private psychologist opined that the Veteran meets the DSM-V criteria for a diagnosis of PTSD. The examiner opined that the Veteran’s PTSD was at least as likely as not related to his claimed stressors. In support of his opinion, the psychologist noted that the Veteran continues to have disturbing memories of military service and nightmares three times a week and becomes highly upset when he reminded of his military service. He continues to experience considerable hypervigilance and reported feeling persistently angry about his experiences in service. When considering all of the evidence of record, the Board finds that the evidence is in at least relative equipoise as to whether the Veteran has PTSD that is related to service. Thus, when resolving all reasonable doubt in his favor, the Board finds that service connection for PTSD is warranted. This represents a full grant of the benefit sought on appeal. 2. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has bilateral hearing loss related to service. VA treatment records from December 2014 state that the Veteran’s pure tone air and bone conduction testing indicated normal hearing bilaterally. Word recognition was excellent (92 percent) in both ears. The impression was normal hearing with tinnitus bilaterally. The Veteran is currently service connected for tinnitus. In support of his claim, the Veteran has submitted a private audiological report dated in October 2020. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 45 40 45 45 LEFT 50 50 35 35 40 Speech audiometry revealed speech recognition ability of 90 percent bilaterally. Under 38 C.F.R. § 3.385, a hearing loss disability for VA purposes is shown when a Veteran has an auditory threshold of 40 decibels or greater for any of the designated frequencies (500, 1000, 2000, 3000, 4000 Hertz), that he has at least three auditory thresholds of 26 decibels or greater for the designated frequencies, or that he has a speech recognition score using the Maryland CNC Test of less than 94 percent. Thus, the private medical evidence is sufficient to show that the Veteran meets the criteria for a hearing loss disability for VA purposes. Therefore, the first element of service connection has been met. Further, at his Board hearing, the undersigned conceded exposure to acoustic trauma during service. As such, the second element of service connection has also been met. Therefore, the question before the Board is whether there is a so-called “nexus” between the Veteran’s current hearing loss disability and service. There is one medical opinion of record. In July 2020, a private examiner opined that the Veteran’s current hearing loss was at least as likely as not caused by service. The examiner noted that the Veteran sustained classic military acoustic trauma beginning in basic training and then more significantly when he deployed to Afghanistan. The examiner explained that the Veteran’s current hearing loss is typical of the sensorineural type most often seen with acoustic trauma. Significant post-service acoustic trauma is not supported by the evidence of record. The Board finds the July 2020 private medical opinion sufficient to support a nexus. As such, service connection for bilateral hearing loss is warranted. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends that service connection for obstructive sleep apnea is warranted. At his Board hearing, he reported that after experiencing a mortar attack during service, he began to have hypersensitivity and not being able to fully fall asleep at night. A February 2017 VA examination report notes that the Veteran experienced chronic sleep impairment as well as sleep disturbance as a symptom of his psychiatric disorder. There was no indication that the Veteran experienced obstructive sleep apnea. However, the Veteran’s attorney has recently submitted a sleep study confirming a current diagnosis of obstructive sleep apnea. A private medical opinion was submitted in July 2020. However, the Board finds this opinion is inadequate and lacks probative weight as it is based on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Specifically, the examiner stated that the Veteran was diagnosed with obstructive sleep apnea during service and “he was fitted with a dental appliance to move the lower jaw forward. His OSA has continued to the present time.” This is simply unsupported by the evidence of record. Indeed, a diagnosis of obstructive sleep apnea was not demonstrated until September 2020, when the Veteran underwent a sleep study. As such, remand is required to obtain a VA medical opinion addressing the etiology of his sleep apnea. 2. Entitlement to service connection for a dental disorder for compensation purposes. The Veteran contends that service connection is warranted for a dental disorder. At his Board hearing, he testified that “we were landing in Kandahar, Afghanistan, and one of the soldiers didn’t have control of his weapon and his buttstock hit my two front teeth and knocked them out, almost all the way out. And what the doctor did there in Kandahar is he just put them back in and now they’re completely dead. They’re mostly black now and sensitive.” See August 2020 Board Hearing Transcript, pg. 5. His service treatment records document treatment for his front teeth. Specifically, on his Report of Medical Assessment dated in January 2008, the Veteran reported having issues with his front teeth and that his front teeth had been chipped and fixed since his prior periodic physical examination. Because the Veteran essentially contends that his front teeth have died and impacted his maxilla, remand is warranted to afford him a VA dental examination. 3. Entitlement to service connection for a dental disorder for treatment purposes is remanded. At his Board hearing, the Veteran stated that his teeth were injured in service and now have essentially become black and dead as a result of the injury. A claim of service connection for a dental disability is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). The regulation relating to service connection for dental disabilities for treatment purposes was amended, effective February 29, 2012, to clarify existing regulatory provisions and to reflect the respective responsibilities of the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA) in determinations concerning eligibility for dental treatment. See Proposed Rules, Dental Conditions, 76 Fed. Reg. 14,600 (Mar. 17, 2011); Final Rule, Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012). The amended version of 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for entitlement to service connection for a dental disability for treatment purposes only after VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA make a determination on relevant questions. 38 C.F.R. § 3.381(a). In this case, the evidence does not show that the AOJ referred the Veteran’s claim for entitlement to service connection for residuals of a dental injury for treatment purposes to the VHA, as required under 38 C.F.R. § 3.381. As a result, remand is necessary. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate clinician addressing the etiology of the Veteran’s obstructive sleep apnea. The entire claims file must be made available to and be reviewed by the examiner. The need for an in-person examination is left to the discretion of the VA examiner. The examiner is advised that he or she may contact the Veteran via telephone to elicit any necessary information. After reviewing the entire claims file, the examiner is asked to opine: (a.) Whether the Veteran’s obstructive sleep apnea is at least as likely as not directly related to service, to include the Veteran’s in-service complaints of sleep trouble; (b.) Whether the Veteran’s obstructive sleep apnea was at least as likely as not caused by his now service-connected PTSD; (c.) Whether the Veteran’s obstructive sleep apnea was at least as likely as not aggravated by his now service-connected PTSD. A complete rationale for any medical opinion rendered must be provided. 2. Afford the Veteran a VA examination with an appropriate clinician to determine the nature and etiology of his claimed dental disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner is asked to state the current diagnosis for any dental condition to include whether the Veteran has any loss of tooth due to loss of maxilla or mandible bone due to trauma or disease such as osteomyelitis, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, or periodontal disease. For any tooth loss or dental condition found, the examiner should state whether such is at least as likely as not (50 percent probability or greater) due to any trauma or disease during military service or subsequent course of care. A complete rationale for any medical opinion rendered must be provided.   3. Forward the Veteran’s claim of entitlement to VA outpatient dental treatment to the appropriate VAMC/VHA facility for adjudication. 38 C.F.R. §§ 3.381; 17.161. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.