Citation Nr: 21014175 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 18-02 907 DATE: March 11, 2021 ORDER Whether new and material evidence was received to reopen a claim of entitlement to service connection for a skin condition has been withdrawn. Entitlement to service connection for a left ankle disability has been withdrawn. Entitlement to service connection for a right ankle disability has been withdrawn. Entitlement to service connection for a left knee disability has been withdrawn. Entitlement to service connection for a right knee disability has been withdrawn. Entitlement to service connection for a neck disability has been withdrawn. The application to reopen the previously denied claim of entitlement to service connection for left ear hearing loss is granted. The application to reopen the previously denied claim of entitlement to service connection for a low back disability is granted. The application to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder is granted. The application to reopen the previously denied claim of entitlement to service connection for residuals of a head injury is granted. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for low back pain is granted. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD) and a personality disorder, is granted. REMANDED Entitlement to a compensable rating for a left ear scar is remanded. Entitlement to service connection for a head injury with residual headaches is remanded. FINDINGS OF FACT 1. During March 2020 hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal for service connection for his bilateral ankles, bilateral knees, neck, and skin disabilities. 2. The July 1978 rating decision denied service connection for low back, nervous condition, hearing loss, and a head injury. The Veteran did not appeal either decision and both are now final. 3. The evidence received subsequent to the July 1978 rating decision is new, and is also material, because it raises a reasonable possibility of substantiating the service connection claims for a low back disability, nervous condition, hearing loss, and a head injury on appeal. 4. Resolving reasonable doubt in the Veteran’s favor, he has a current diagnosis of PTSD that is related to his in-service stressors. 5. Resolving reasonable doubt in the Veteran’s favor, his left ear hearing loss began during active service. 6. The Veteran’s current low back disability is related to his in-service back strain. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the request to reopen a claim of entitlement to service connection for a skin condition by Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim of entitlement to service connection for a bilateral ankle disability by Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the claim of entitlement to service connection for a bilateral knee disability by Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the claim of entitlement to service connection for a neck disability by Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. New and material evidence has been received to reopen a claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. New and material evidence has been received to reopen a claim of entitlement to service connection for left ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. New and material evidence has been received to reopen a claim of entitlement to service connection for low back pain. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 8. New and material evidence has been received to reopen a claim of entitlement to service connection for head injury with residual headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 9. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.303, 3.304. 10. The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.303, 3.304. 11. The criteria for entitlement to service connection for low back pain have been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from July 1977 to March 1978. He testified at a hearing in March 2020 before the undersigned Veterans Law judge; a transcript is associated with the record. Withdrawal 1. Whether new and material evidence was received to reopen a claim of entitlement to service connection for a skin condition. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for a right ankle disability. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to service connection for a right knee disability. 6. Entitlement to service connection for a neck disability. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. During the March 2020 hearing, the Veteran testified that he wished to withdraw his appeals for service connection for his bilateral ankles, bilateral knees, neck, and skin disabilities. As the Veteran has withdrawn these appeals, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and all six are dismissed. New and Material 7. Whether new and material evidence submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. 8. Whether new and material evidence was submitted to reopen a claim of entitlement to service connection for left ear hearing loss. 9. Whether new and material evidence was submitted to reopen a claim of entitlement to service connection for low back pain. 10. Whether new and material evidence was submitted to reopen a claim of entitlement to service connection for a head injury with residual headaches. The RO denied service connection for disabilities related to his low back, nervous condition, hearing loss, and a head injury in a July 1978 rating decision. This decision was not appealed and became final in July 1979. The evidence submitted after July 1978, including various VA and private treatment records, a December 2019 private PTSD examination; a July 2014 VA hearing examination; a July 2015 VA PTSD examination, a July 2013 statement by the Veteran; statements by the Veteran’s two sisters both submitted February 2020; and the March 2020 hearing transcript relates to unestablished facts necessary to substantiate these service connection claims. Therefore, the Board finds that each of the four claims above should be reopened. Service Connection Generally, to prove 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, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, 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). Hearing loss is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a “continuity of symptoms” after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, hearing loss will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. §§ 3.307, 3.309(a). The disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Lay evidence must be considered, and competent lay evidence can be sufficient in and of itself to establish service connection. However, the Board retains the discretion to determine credibility and weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Laypersons are considered competent to provide a medical diagnosis only if (1) the disorder is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicolson, 492 F.3d 1372 (Fed. Cir. 2007). 11. Entitlement to service connection for a psychiatric disorder, to include PTSD and a personality disorder. The Veteran’s entrance examination report, STRs, and separation examination report are silent as to any psychiatric diagnosis or treatment. On his report of medical history completed at separation, the Veteran indicated symptoms of nervous trouble, depressive symptoms, and excessive worry. The Veteran was afforded a VA neuropsychiatric examination in April 1978 and was diagnosed with a personality disorder. The examiner found no evidence of psychosis or neurosis on exam, but noted some emotional instability if under too much pressure. Mental status examination did not show any depression and he only reported nervousness when being “hassled” or under pressure. He was well oriented, displayed no hallucinations, obsessions or compulsions, and his memory and intelligence were within normal limits. There was no evidence of pathological thinking. He was in contact with reality and had good judgment. The Veteran stated in the winter of 1978, while on a routine road march, he was attacked by fellow soldiers. He was hit in the head with the butt of a gun and received severe injuries to his head, neck, and left ear. His ear had to be reattached surgically. He began to suffer from depression and nightmares related to the attack, which have caused familial and social problems in his life. Treatment record show the Veteran was being treated for anxiety. He had a negative screening for depression in March 2019 and February 2018. He underwent a psychiatric consult in February 2017, during which he discussed the assault he experienced in service. He reported various symptoms over the years, including depression, irritability, insomnia, and difficulty concentrating. He also endorsed daily anxiety and feeling tense. He described recurrent memories from his in-service stressor, nightmares, hypervigilance, hyperarousal, and avoidant behaviors. The examiner diagnosed unspecified anxiety disorder, rule out PTSD. In June 2015, the Veteran underwent an initial PTSD VA examination and described the attack he suffered in service. The examiner noted that the Veteran did not meet the criteria for a PTSD diagnosis. The examiner indicated the Veteran did not endorse any symptoms related to criterion C, D and E as it related to his traumatic experience in service. Specifically, there was no indication of avoidance of stimuli, negative alterations in cognitions and mood, or marked alterations in arousal and reactivity associated with the traumatic event. No other mental disorder diagnosis was provided. A private examiner completed a disability benefits questionnaire in June 2019 and provided a diagnosis of PTSD with derealization based on results of a psychological examination. The examiner conducted psychological testing which showed the Veteran suffered from somatic and neurological complaints, which were evident from his physical trauma and subsequent medical and cognitive issues. The examiner found it likely that his symptoms were exacerbated by stress. His symptoms included chronic anxiety, intrusive ideation, and nightmares, which undoubtedly prompted irritability and low frustration tolerance. The examiner noted that his anxiety and fearfulness likely stemmed from his military experiences of being attacked and persistently harassed both verbally and physically, which deterred his ability to trust others or rest, as he believes that he must remain hypervigilant to threats. Based on the foregoing, the Board finds that service connection for PTSD is warranted. Per the June 2019 private examiner, the Veteran has a current diagnosis of PTSD. His reported in-service stressor of being attacked is well documented and supported by the treatment of the injuries he suffered. As such, the appeal turns on whether there exists a link between the Veteran’s diagnosis and his in-service stressor. Given the conflicting diagnoses based on examination by VA and private mental health professionals, the evidence is approximately evenly balanced as to whether the Veteran meets the diagnostic criteria for PTSD. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. 12. Entitlement to service connection for left ear hearing loss. The Veteran was afforded a VA hearing examination in April 1978; however, there were no acuity measurements. On the authorized audiological evaluation in July 2014, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 10 10 35 30 21 LEFT 20 25 50 45 36 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 90 percent in the left ear. Ultimately, the examiner found that the Veteran’s bilateral hearing loss was not at least as likely as not caused by or a result of his service. His hearing was normal at entrance and separation to service and there was no significant shift in thresholds for either ear. Moreover, the examiner found that there was no scientific basis for the existence of delayed onset hearing loss. As for his left ear, the Veteran has a diagnosis of mild to moderate sensorineural hearing loss. His DD214 indicates his military occupational specialty was infantryman, which has a high probability of noise exposure. As such, noise exposure is conceded. The first and second elements of service connection have been met. The July 2014 examiner found that it was not likely the Veteran’s hearing loss was incurred in service. In spite of noise exposure, his hearing was normal both at the start and separation from service. However, studies show that hearing loss can have a delayed onset. Moreover, the Veteran indicated that following the head injury he sustained during service, he noticed his hearing decline. He complained that it worsened after service. The positive and negative evidence is in equipoise. Resolving all reasonable doubt in the Veteran’s favor, service connection for left ear hearing loss is granted. 13. Entitlement to service connection for low back pain. Review of the Veteran’s service treatment records shows the Veteran complained of low back pain, but the subsequent examination was normal. He indicated recurrent back pain on his report of medical history completed at discharge. However, the separation exam showed his spine was normal. An April 1978 VA examination showed the Veteran’s musculoskeletal system was within normal limits. There was no mention of any back pain or other symptoms. During the March 2020 hearing, the Veteran testified that he experienced back pain after a night jump where he “landed wrong” and felt a sharp pain in his hip and back area. He went to sick call but did not receive any treatment or guidance. His back pain continued and worsened. In a March 2020 statement, a private examiner indicated that the Veteran had been examined and treated on and off from 1987 to 2018. Collection of his medical history was also taken at those times. From those interactions, the examiner concluded that the Veteran had various diagnoses related to his spine, including intervertebral disc disorder, central protrusion type disc herniation, moderate central canal stenosis, and radiculopathy. The examiner found that the back strain the Veteran suffered after jumping from airplanes in service was the start of his back problems and is associated with his current diagnoses. Specifically, back strains cause the muscles to overstress and the tissue to stretch or tear, which leads to chronic back issues. The private examiner noted that scar tissue from his in-service injury is present on current MRI and x-rays. Based on the foregoing, the Board finds that service connection for a low back disability is warranted. The Veteran has a current diagnosis, there is a complaint of low back pain during service, and the March 2020 private opinion indicates there is a nexus between his current back problems and the injury he suffered during service. The private examiner reviewed the Veteran’s service treatment records, conducted various examinations, and provided a positive opinion, which was supported by a rationale. As such, the private examiner’s opinion is afforded great probative weight. The Board also notes there is no contrary opinion of record. Service connection for a low back disability is warranted. REASONS FOR REMAND 1. Entitlement to a compensable rating for a left ear scar. The Veteran was last afforded a VA examination for scars in July 2014. Since that time, he has reported worsening symptoms to include tenderness. As such, a new examination is warranted to obtain current symptoms and findings. 2. Entitlement to service connection for a head injury with residual headaches. The Veteran has reported that he suffered a head injury during service that resulted in headaches. Review of the record shows the Veteran suffered a head injury as a child that caused mild headaches. He is already service connected for the left ear scar and now, left ear hearing loss, related to that incident. However, the Veteran has never had a VA examination to determine the etiology of his claimed headaches. The Board finds that a remand is necessary to afford the Veteran an examination and obtain an opinion as to etiology of his headaches. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA scar examination to determine the current nature and severity of his left ear scar. 2. Schedule the Veteran for a VA examination for his head injury with headaches. The examiner is asked to review the entire record, to include the head injury the Veteran suffered prior to service, as well as his lay statements regarding experiencing headaches following the in-service injury. The examiner is asked to determine whether the Veteran suffers residuals of his head injury, to include headaches. If so, the examiner should determine whether the injury he experienced during service permanently aggravated his pre-existing head injury/headaches. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Price, 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.