Citation Nr: 21021129 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-28 813 DATE: April 9, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for tinnitus is granted. REMANDED The issue of service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Resolving any doubt in the Veteran’s favor, the Veteran has a current diagnosis of PTSD based on criteria in the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5), and his current PTSD was caused by his period of active service. 2. Resolving any doubt in the Veteran’s favor, his tinnitus was caused by in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been approximated. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 2. The criteria for service connection for tinnitus have been approximated. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. § §§ 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1970 to March 1972. He served in the Republic of Vietnam and his military decorations include the Bronze Star Medal. In March 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a discussion with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is in the claim file. Service Connection 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, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, 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’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. PTSD There are additional requirements for establishing service connection for PTSD that are separate from those for establishing service connection generally. See 38 C.F.R. § 3.304 (f). The requirements are: (1) a PTSD diagnosis that meets the criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5); 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); 4.125. 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, or a psychiatrist or psychologist with whom VA has contracted, 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. “Fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran 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 veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f). The Veteran contends he has PTSD due to experiencing traumatic events in service, including combat-related stressors. His claimed stressors include being fired upon during guard duty and on other occasions, witnessing the death of a fellow soldier in a vehicle accident, and seeing dead and wounded bodies. The Veteran reports that he participated in multiple firefights and regularly feared for his life. In a June 2014 mental health evaluation, a non-VA psychologist interviewed the Veteran and concluded the Veteran’s claimed stressor events met the criteria for a PTSD diagnosis under the DSM-V. The Veteran was afforded a VA PTSD examination in October 2014. During the examination, he indicated he could not recall stressor events that occurred during service. However, he informed the VA examiner that he was being treated by non-VA mental health care providers who diagnosed him with PTSD. Although the VA examiner had access to and apparently reviewed the Veteran’s prior accounts of military stressors, the examiner concluded the Veteran did not have PTSD because the Veteran could not recall stressor events during the examination. In an August 2016 non-VA mental health evaluation, the Veteran continued to report PTSD symptoms due to combat-related stressors. He reported these symptoms began immediately after separating from service. Based on the Veteran’s symptoms and his reported stressors, the examining clinician diagnosed the Veteran with PTSD based on DSM-V criteria and concluded the condition was related to service. In a non-VA, August 2019 psychiatric examination, upon a clinical psychiatric evaluation and thorough review of the Veteran’s mental health history, the psychologist diagnosed the Veteran with PTSD in accordance with DSM-V guidelines. The psychiatrist opined that, considering history as related by the Veteran, the current examination, and a review of the medical records, the Veteran’s claimed and current DSM-V diagnosis of PTSD is more likely than not related to military trauma. The psychiatrist stated that the Veteran demonstrated “classic symptomatology” of PTSD and noted the Veteran had these symptoms for many years before seeking mental health treatment. While the October 2014 VA examiner concluded the Veteran did not have PTSD, three non-VA mental health providers have thoroughly explained that the Veteran’s current symptoms and claimed military stressors meet DSM-V criteria for PTSD. The Board will resolve any doubt in the Veteran’s favor and grant the claim. 2. Tinnitus Tinnitus is defined as a ringing in the ears, and it is a disorder that is uniquely identifiable by the senses of the person experiencing it. It is “simple” in nature and therefore it can be diagnosed by the person experiencing the condition. See Jandreau, supra. In other words, a diagnosis of tinnitus does not require any medical expertise (i.e. is not “complex” in nature), and assuming the allegations of the veteran are credible, testimonial evidence of an origin of the condition in service can be used to support a claim for service connection. The Veteran’s Report of Separation from the Armed Forces (VA Form DD 214) indicates a military occupational specialty (MOS) of “Track Vehicle Mechanic.” As was acknowledged at an October 2014 VA hearing loss examination, the Veteran’s MOS carries a high probability of noise exposure. His military noise exposure is recognized. As a layperson (someone without medical expertise), the Veteran is competent to report ringing in his ears since service. He has credibly reported experiencing ringing in his ears during service that continued to the present. The Veteran therefore has a current disability. During the October 2014 VA examination, the Veteran reported experiencing ringing in his ears and “partial deafness” after being exposed to gunfire during service. He reported he still experiences ringing in his ears. The VA examiner acknowledged the Veteran’s high probability of noise exposure, but concluded the Veteran’s tinnitus was not related to acoustic trauma during service because there was no evidence of a significant threshold shift in hearing during active service. In a July 2019 opinion, a non-VA otolaryngologist concluded the Veteran’s tinnitus was likely caused by exposure to loud noise during service, including regular exposure to noise from .450 caliber machine guns and an 8-inch self-propelled gun battery. The Board will resolve any doubt as to the etiology (cause) of the Veteran’s tinnitus in favor of the Veteran. The claim is granted. REASONS FOR REMAND 1. The issue of service connection for bilateral hearing loss is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The RO previously denied service connection for bilateral hearing loss based on a 2014 VA audiological examination. Since that examination, the Veteran has reported his hearing has worsened. This raises the possibility that his diagnosed hearing impairment has now reached the level of severity necessary to be defined as a disability within the meaning of the law. Remand is therefore necessary to determine the current severity of the Veteran’s hearing impairment. 2. REMAND DIRECTIVES: Request that the Veteran provide any non-VA audiological examination results and statements from audiologists and hearing aid providers. Assist him in obtaining this evidence if necessary. After conducting the above development, schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of his bilateral hearing loss. All tests and studies should be accomplished and the findings reported in detail. All relevant medical and non-medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a thorough explanation for all opinions provided. The examiner should provide the following opinions: (a.) Does the Veteran have bilateral hearing loss for VA purposes? (b.) If the Veteran has bilateral hearing loss for VA purposes, was it incurred in or caused by service? The examiner is advised that the Veteran was exposed to military acoustic trauma due to his duty specialty as a track vehicle mechanic. In addition to reviewing the entire claims file, the examiner is specifically requested to review the June 2019 non-VA Disability Benefits Questionnaire (DBQ) and medical opinion. See “VA Examination,” (mislabeled) received July 3, 2019. Ensure all medical and factual development has been completed and readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.