Citation Nr: 21012229 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-37 806 DATE: March 3, 2021 ORDER Service connection for tinnitus is granted. Service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his tinnitus began during active service. 2. Resolving reasonable doubt in the Veteran’s favor, his PTSD is at least as likely as not related to his active duty service in Bosnia. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1997 through September 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in November 2018. It is now returned to the Board for further appellate review. Additional records were associated with the Veteran’s file after the Agency of Original Jurisdiction (AOJ) issued a March 2020 Supplemental Statement of the Case (SSOC). In October 2020, VA sent the Veteran correspondence asking if he wished the Board to remand this matter back to the AOJ for initial review of the additional evidence or waive initial review by the AOJ and have the Board adjudicate the matter. In a December 2020 correspondence, the Veteran requested the Board remand this matter to the AOJ for initial review. The Board will proceed with adjudication of the issues of entitlement to service connection for tinnitus and PTSD. As the Board is granting entitlement to service connection for these issues and this is a full grant of the benefit sought, the Veteran is not prejudiced by the Board’s actions. 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. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current 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 the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Tinnitus Certain chronic diseases, including hearing loss and tinnitus, will be granted service connection on a presumptive basis if there is evidence, they manifested within a year of separation from service. 38 C.F.R. §§ 3.307(a), 3.309(a). Alternatively, for such chronic diseases shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (section 3.303(b) only applies to the chronic disabilities listed in 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309(a)); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding section 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease of the nervous system'"). Tinnitus is a condition capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that "ringing in the ears is capable of lay observation" and, as such, a veteran is competent to testify as to that symptom). Therefore, the Veteran is competent to describe his tinnitus symptomatology in service and after service. VA provided the Veteran an audiological examination in January 2014, at which he reported that he experienced symptoms of tinnitus after service. The examiner opined that the tinnitus was less likely than not caused by service because there is no documentation of tinnitus in the Veteran’s service treatment records nor documentation of current hearing loss. The Board finds that the evidence is at least in equipoise as to the tinnitus having its onset during service. The Veteran has consistently maintained he began experiencing ringing in his years while attending pre-deployment training where he was exposed to gun fire, sometimes without hearing protection, and he has continued to experience ringing since. Furthermore, the examiner noted the Veteran did not experience pre-service and post-service acoustic trauma. There is no evidence that conflicts with the Veteran's lay reports. The evidence of record is at least in equipoise as to whether the Veteran’s tinnitus began in service and the evidence reflects his tinnitus has continued since onset. Accordingly, the Board finds that service connection for tinnitus is warranted. PTSD Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); medical evidence of a link between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 139-43 (1997). If a claimed stressor is related to the fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the claimant'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 claimant's service, the claimant's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). For these purposes, "fear of hostile military or terrorist activity" means the claimant experienced, witnessed, or was confronted with an event or circumstances that involved actual or threatened death or serious injury, or a threat to the physical integrity of the claimant or others, such as from an actual or potential improvised explosive device, vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the claimant's response to the event or circumstances involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. With regard to the favorable diagnosis of PTSD for the Veteran the Board is aware that pursuant to 38 C.F.R. § 4.125(a), if the diagnosis of a mental disorder does not conform to DSM-5 or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. However, mental health professionals are experts and are presumed to know the DSM-5 requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis. As such, the Court has held that a PTSD diagnosis provided by a mental-health professional must be presumed to have been made in accordance with the applicable DSM-IV (or DSM-5) criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor, unless there is evidence to the contrary. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The Veteran contends his active duty service in Bosnia, including conducting investigations related to war crimes, mass murders, torture, adult and child sex crimes, slavery, and the death by suicide of a fellow service member caused his PTSD. The Veteran’s military records are consistent with his assertions. In June 1999, he had a pre-deployment examination in which it is noted that he would be deployed to Bosnia. In addition, his DD Form 214 notes an occupation of legal specialist. The Veteran’s mother and sister submitted statements regarding the Veteran’s deployment to Bosnia. In October 2014 correspondence, the Veteran’s mother indicated the Veteran’s personality drastically changed after he returned from his deployment to Bosnia. Specifically, she indicated the Veteran became “explosive,” “untrusting,” and has withdrawn from his family. The Veteran’s sister, in an October 2014 correspondence, stated the Veteran became pessimistic, aggressive, and irritable after his deployment. She also noted the Veteran had a substantial change to his “temper.” In a March 2013 lay statement, the Veteran reported he had problems with alcohol since his deployment, was unable to sleep, had issues with mood swings, and would slip “into rages.” He further stated that he lies in bed and thinks about the war crimes that were committed, the people that were hurt, and the lives that were destroyed. The Veteran stated he investigated child sex trafficking and slavery; investigated accusations of rape and torture; and he photographed dead bodies. The Veteran further reported that his symptoms are so bad he separated from his wife and his children could not play around him. The Veteran reported he lost his desire to live. The Veteran submitted a private medical opinion provided by Dr. A.A. in April 2016. Dr. A.A. confirmed the Veteran’s PTSD diagnosis and opined the Veteran’s PTSD was more likely than not related to his active duty service because of the events the he experienced in Bosnia while deployed. Dr. A.A. indicated the events the Veteran experienced in Bosnia, the claimed stressors, were adequate to support a PTSD diagnosis and the Veteran’s symptoms are related to the events in Bosnia he witnessed. The Board finds this opinion highly probative because Dr. A.A. provided a well-reasoned medical opinion supported by medical literature; pertinent in-service and post-service medical records; lay statements; and relevant compensation and pension exams. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In a May 2016 Phoenix VA Medical Center mental health outpatient assessment, the examiner, Dr. M.M. diagnosed the Veteran with PTSD and reported that he had been exposed to actual or threatened death, or serious injury while deployed to Bosnia. Specifically, the examiner noted the Veteran reported having to investigate crimes and remove dead bodies of victims. Dr. M.M. reported the Veteran experiences repeated, disturbing and unwanted memories and dreams of his deployment to Bosnia. Furthermore, the Veteran reported feeling upset when reminded of the events in Bosnia and avoids memories, thoughts and feelings about his deployment. The Veteran further reported he blames himself for what happened and endorsed strong negative feelings. Moreover, the examiner noted the Veteran’s behaviour as irritable, aggressive, and with angry outbursts. In a July 2014 VA treatment note, the Veteran reported that he began to have sleep difficulties and nightmares after he returned from Bosnia. The Veteran again reported that he investigated mass killings and rape of civilians. The Veteran reported he was hospitalized in 2010 for suicidal ideations. The Veteran was in a car accident in February 2001, while on active duty, and is service connected for a traumatic brain injury (TBI) because of the accident. VA provided the Veteran a TBI examination in September 2019 to determine whether the Veteran has a separate psychological (cognitive or non-cognitive) disorder resulting from the service connected TBI. The examiner noted the Veteran has frontal lobe injuries from his TBI resulting in disinhibitory behaviour, and an inability to control emotions. Moreover, the examiner noted the Veteran has symptoms of PTSD relating to witnessing horrific events, such as mass killings, while he was deployed to Bosnia. The Examiner further noted the Veteran has experienced symptoms of depression as well. The examiner concluded that PTSD and depression cannot be established as secondary to the Veteran’s TBI because it would be speculation to attribute his symptoms to PTSD and depression or TBI. The examiner did not address whether the Veteran’s PTSD is directly related to his active duty service, to include his deployment to Bosnia. The Board After careful review of the lay and medical evidence of record, the Board finds the evidence of a causal relationship between the Veteran’s PTSD and his active service, including his deployment to Bosnia and his motor vehicle accident, are at least in relative equipoise. Resolving reasonable doubt in favor of the Veteran, the Board finds it is at least as likely as not that the Veteran’s PTSD began during his active service. Accordingly, the Board finds that service connection for PTSD is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1991). REASONS FOR REMAND Bilateral hearing loss As noted above, additional VA medical records were associated with the claims file after the case was transferred to the Board and the Veteran elected to have the AOJ review the additional evidence in the first instance. Accordingly, this issue must be remanded so that the RO can review this evidence in connection with the current issue on appeal and then provide the Veteran an SSOC. 38 C.F.R. § 19.37(b). VA's duty to assist requires reasonable efforts to ensure all relevant treatment records have been obtained and associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). In June 2020 correspondence, the Veteran asserted the October 2010 records associated with the claims file from the Dayton VAMC are incomplete. Although the RO previously attempted to obtain the October 2010 records from the Dayton VAMC, the Board finds an additional attempt is warranted because the Veteran has provided incomplete copies indicating additional records may exist. VA must attempt to obtain these treatment record as they may be relevant to the Veteran's claim. Id. In May 2016 correspondence, the Veteran requested a new VA audiological examination. Although VA last provided the Veteran an audiological examination in January 2014, the Veteran has not claimed that his hearing has worsened since the examination nor is there any evidence to suggest a worsening. A new examination is not warranted based solely on the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The matter is REMANDED for the following action: Attempt to obtain complete treatment records from the Dayton VAMC. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.