Citation Nr: 21020741 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-10 051 DATE: April 8, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has an acquired psychiatric disorder that is related to active military service or events therein. 2. The Veteran's right ear hearing loss disability was noted at the time of his examination for entrance into active service and is not shown to have been aggravated during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder (claimed as a nervous condition) are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.303. 2. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from March 1975 to May 1975. The issues were previously remanded for further development in a June 2018 Board of Veterans’ Appeals (Board) decision. The case has now been returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for an acquired psychiatric disability. The Veteran asserts that his current psychiatric disability is etiologically related to service. He has specifically stated that he was treated for a “nervous condition” during service. The Board notes at the outset that the Veteran’s time in service was less than three months. During his March 1975 entrance examination, he denied any psychiatric symptoms. However, the Board notes that the Veteran’s personnel records indicate disciplinary actions due to failure to follow orders and note that the Veteran “refused to do anything.” He was provided a psychiatric evaluation in May 1975 due to his disciplinary problems and poor performance, but no medical diagnosis was given. It was determined that the Veteran did not wish to be in the Marine Corps and he was subsequently discharged. His service treatment records (STRs) do not contain any other complaints or treatment for a psychiatric disorder or symptoms thereof. No separation examination was conducted as it was determined that there was no significant change since his entrance examination. The Veteran underwent an October 2006 psychological evaluation in conjunction with a Workers’ Compensation claim, as he suffered a neck and traumatic brain injury while working as a laborer for Express Personnel in September 2004. He was referred to another private physician for a follow-up psychological evaluation in November 2006. At that time, the Veteran denied any history of a psychiatric disorder or treatment prior to his work-related injury. He was diagnosed with a pain disorder, anxiety, depression, and a cognitive disorder (post-concussion syndrome). The examiner noted severe cognitive defects secondary to his injury, as well as sleep problems, difficulty with concentration, anxiety, nervousness, and nausea. He noted that the Veteran was distraught about the injury, pain, and loss of ability to function and work. He did not address or associate any of the Veteran’s diagnoses or symptoms to his military service, but rather attributed all symptoms to his September 2004 accident. Further evaluation was conducted in December 2006. The Veteran again denied any psychiatric symptoms, specifically any significant episodes of depression anxiety, prior to the work injury. The Veteran has continued to receive ongoing treatment for psychological and cognitive rehabilitation as well as physical rehabilitation since that time, including psychotherapy and anti-depressant medication. The purpose of psychotherapy was described by the provider as “to help him reduce the anxiety and depression which he has experienced secondary to his injury, reduced physical capacity, and continued pain.” Again, the available records indicate that his military service was not addressed or contemplated as a factor of his psychological symptoms during his treatment. The Veteran was afforded a VA examination in November 2019 to determine the nature and etiology of any acquired psychiatric disorder. The examiner diagnosed the Veteran with an unspecified anxiety disorder, and traumatic brain injury (TBI) with chronic pain. The Veteran reported that he did not receive any post-military psychiatric treatment and is now prescribed antidepressants due to his recent TBI. The examiner opined that the Veteran’s current psychiatric disorder is less likely than not etiologically related to his military service. She stated that, based on her clinical experience, the Veteran presented as someone who experienced a TBI or is intellectually disabled. She explained that his psychological symptomatology is complex due to the fact that he experienced a severe head injury in 2004 and also reported suffering a transient ischemic attack (TIA) only a week prior to this examination. The examiner acknowledged the Veteran’s behavioral issues during his two months in service but noted that he began experiencing a myriad of mental health and cognitive symptoms following his accident in 2004. There are no other mental health records indicating symptoms prior to that time. Therefore, she stated that she could not attribute his current psychiatric symptoms to his military service without mere speculation. The Board acknowledges the competent and credible lay statements from the Veteran regarding symptomatology. Nevertheless, to the extent that the Veteran attributes his current psychiatric disability to service, he is not competent to opine on the etiology of a complex medical condition, and his statements are therefore afforded no weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While his service records indicate separation from service due to behavioral issues, there is no diagnosis or evidence of further psychiatric symptomatology until many years after service following a severe head injury. The Board affords more probative weight on the November 2019 examiner's opinion, for it is provided by a medical practitioner, reached based on medical principles and methods and sufficient facts consistent with the evidence in the claims file. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). Accordingly, the claim for service connection for an acquired psychiatric disorder must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claims, the doctrine is not for application. 38 U.S.C. § 5107. 2. Entitlement to service connection for right ear hearing loss. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. If a condition is noted on an entrance examination report, the presumption of soundness never attaches - the only benefits that can be awarded are for aggravation of such condition by application of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. During the Veteran’s March 1975 entrance examination, his pure tone thresholds were 35 decibels at 500, 1000, and 2000 Hertz and 40 decibels at 4000 Hertz. The examiner noted defective hearing and he entered service on an H2 profile. His hearing loss in his right ear was noted on entry into service and is therefore considered a preexisting condition. The Veteran was not afforded a separation examination, as it was indicated there was no change noted since the entrance examination. If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service incurrence for that disorder, but he may bring a claim for service-connected aggravation of that disorder. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). In that case, the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Service connection is warranted if the preexisting disorder was aggravated by a veteran’s active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The Veteran was afforded a VA examination in January 2009. During the examination, his pure tone thresholds were 15 decibels at 500 Hertz, 10 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, and 35 decibels at 3000 and 4000 Hertz. The Maryland CNC Test revealed speech recognition ability of 90 percent in the right ear. The examiner opined that the Veteran’s hearing loss was, as the Veteran contends, due to “being hit in the head with a stick during training.” However, the examiner did not acknowledge that the Veteran’s hearing loss predated his active duty service. Therefore, pursuant to the June 2018 Board remand, an addendum opinion was obtained in March 2019. The examiner opined that the Veteran’s right ear hearing loss, which clearly and unmistakably predated service, was clearly and unmistakably not aggravated beyond its natural progression by service. As rationale, he explained that the 2009 audiometric testing did not show a significant audiometric shift from testing done upon entrance into service. Because the pure tone thresholds for the right ear during his entrance examination in 1975 actually revealed greater hearing loss at that time, there is no possibility of aggravation of the disability due to service. The Board accepts the March 2019 VA opinion as probative evidence that the Veteran's preexisting right ear hearing loss was not aggravated by his active service. The examiner explained that the service treatment records and post-service audiological testing show no increase in the severity of the Veteran's preexisting right ear hearing loss. The Board has considered the Veteran's assertions that his preexisting right ear hearing loss was aggravated by service. The Veteran is competent to report subjective symptoms such as difficulty hearing, to include perceived decreases in hearing acuity. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board does not question his credibility in that regard. However, the Veteran is not considered competent to assess the relative severity of hearing loss, to include any increase in severity during the Veteran's active service, as doing so involves medical testing and medical knowledge the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). The objective medical evidence of record, as interpreted by the most probative medical opinion in this case, does not show an in-service aggravation of the preexisting right ear hearing loss disability. Therefore, in that regard, the statements by the Veteran are contradicted by the probative medical evidence of record. In summary, the preponderance of the evidence is against finding that the Veteran's preexisting right ear hearing loss disability was aggravated beyond its natural progression during his active service. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for right ear hearing loss. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for tinnitus is remanded. The Board notes that the Veteran’s STRs are silent as to complaints for tinnitus. During the January 2009 VA examination, the Veteran reported experiencing tinnitus since 1975 when he was struck in the head during basic training. The examiner opined that the Veteran’s tinnitus was as likely as not related to his hearing loss. He also opined that the tinnitus was at least as likely as not related to military noise exposure. The Board notes that no opinion regarding tinnitus was provided during the March 2019 VA examination. Given that the Board found the January 2009 VA opinion to be inadequate as to right ear hearing loss because the examiner failed to address the preexisting hearing loss, and the findings above denying service connection for right ear hearing loss, the Board finds that an addendum opinion clarifying the etiology of the Veteran’s claimed tinnitus is necessary. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from a clinician of appropriate expertise to determine the etiology of the Veteran's tinnitus. The examiner is to be provided access to the Veteran's electronic claims file and must specify in the report that these records have been reviewed. The examiner is asked to determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus began during military service or is otherwise related to military service. The examiner should specifically address the Veteran’s lay statements regarding the onset and continuity of symptomatology since service. The examiner should also address and reconcile any previous reports and pertinent evidence of record as necessary, to include the January 2009 VA examination. The examiner must provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. If it is determined that another VA examination is required in order to provide the requested opinions, such examination should be arranged. 2. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, 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.