Citation Nr: 21011556 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-41 081 DATE: March 2, 2021 ORDER Entitlement to service connection for right-ear hearing loss is granted. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder and other specified trauma and stressor-related disorder, is granted. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, the Veteran’s currently diagnosed right-ear hearing loss disability is related to hazardous noise exposure sustained in service. 2. The Veteran’s current acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and other specified trauma and stressor-related disorder, is related to service trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for right-ear hearing loss are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and other specified trauma and stressor-related disorder, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to April 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters, inter alia, were previously remanded by the Board in August 2018 for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for right-ear hearing loss The Veteran asserts that his right-ear hearing loss is related to in-service exposure to hazardous noise. For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, 5 Vet. App. at 159. The Veteran is currently diagnosed with right-ear hearing loss. See, e.g., June 2014 VA audiology examination report. The first element of service connection is met. Regarding the second element of in-service incurrence, the Veteran’s exposure to hazardous noise has been established. Notably, service connection has already been awarded for the Veteran’s left-ear hearing loss on the basis that in-service significant puretone threshold shift indicative of auditory damage from in-service hazardous noise exposure. Thus, the second element of service connection is met. With respect to the third element, or a nexus, although a review of the Veteran’s service treatment records shows audiometric testing which indicates normal hearing at the time of this January 1979 separation examination, during a June 1975 periodic examination, the examiner noted early right-ear hearing loss and a 25 dB threshold at 4000 Hz. Hearing conservation testing in March 1978 shows a 45 dB threshold at 4000 Hz and in April 1978, a 25 dB threshold at 4000 Hz is shown, which is 40 and 20 dB higher than at enlistment, respectively. The Veteran has reported that he first experienced decreased hearing acuity while in active service from his daily in-service exposure to loud aircraft, weapons and jet engine noise while working as an aircraft crew chief during his active duty service. The Veteran is competent to report when he first experienced symptoms of hearing loss disability and that his symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995). Moreover, the Board finds the Veteran to be credible in that respect, as his contention is consistent with the circumstances of his service. The June 2014 and October 2019 VA examiners opined that the Veteran’s current right-ear hearing loss was less likely due to service. The reasoning was that there was no significant permanent shift in hearing thresholds from enlistment to separation in the Veteran’s right ear. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley, 5 Vet. App. at 159-160. Further, evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above), and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Based on the specific facts in this case, the Board finds that the evidence is in equipoise. Although there is no positive opinion of record, the Veteran has in-service noise exposure, a currently diagnosed right-ear hearing loss disability for VA benefit purposes and an award for service connection for left-ear hearing loss based on in-service hazardous noise exposure, which tends to support the Veteran’s contention that noise exposure led to his right-ear hearing loss. While the record indicates the Veteran experienced post-service occupational and recreational noise exposure, he reported that hearing protection was required occupationally, and that he wears hearing protection recreationally. As such, all reasonable doubt is resolved in the Veteran’s favor, and service connection for bilateral hearing loss is granted. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and other specified trauma and stressor-related disorder The Veteran filed a claim of entitlement to service connection for an acquired psychiatric disability. The Veteran has reported several in-service stressors including coming under attack from rocket fire and small arms fire, seeing the people he was shooting during a mission and the next day, seeing the rivers of blood and mangled, mutilated bodies from their attack. The evidence shows that the Veteran has a current diagnosis of other specified trauma and stressor-related disorder. The record also shows that diagnoses of PTSD have been made during the appeal. The first element of service-connection is met. With respect to the second element of service connection, the record shows that the Veteran was deployed to Vietnam and worked as a tactical aircraft crewman and maintenance worker for a combat support group. As noted, the Veteran maintains that he was exposed to rocket attacks and small arms firing. His contentions are consistent with the time, place, and circumstances of his service. See 38 U.S.C. § 1154; 38 C.F.R. § 3.304. Importantly, the October 2019 examiner confirmed that several of the Veteran’s reported stressors were related to fear of hostile military or terrorist activity and found that he and his service records credibly described trauma-related symptoms due to experiences in Vietnam. The Board therefore finds that the second element of service connection is met. The October 2019 examiner opined that it was at least as likely as not that the Veteran’s other specified trauma and stressor-related disorder was incurred in or caused by his described stressors. The examiner reasoned that the Veteran presented with trauma-related symptoms associated with his traumatic military experiences, which increased when his son was deployed, and included feelings of helplessness, anxiety, chronic sleep impairment, hypervigilance, exaggerated startle response and irritability. The evidence indicates that the Veteran experienced fear of hostile military or terrorist activity while in Vietnam. It also indicates that, as a result of these experiences, he has a current disability of other specified trauma and stressor-related disorder. The examiner also indicated that the Veteran has had PTSD. Based on the evidence, service connection is warranted for an acquired psychiatric disorder, to include PTSD and other specified trauma and stressor-related disorder. The claim is granted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.