Citation Nr: 21025006 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-32 584 DATE: April 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a psychiatric disorder other than PTSD is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) with hiatal hernia is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss is causally or etiologically related to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5017; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1975 to July 1977. Issue 1: Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for organic diseases of the nervous system if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptoms since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Sensorineural hearing loss (organic disease of the nervous system) is a chronic disease listed under 38 C.F.R. § 3.309(a). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that he has hearing loss due to acoustic trauma from shooting weapons while he was in the infantry during service. See February 2021 Board hearing transcript. The Veteran’s service treatment records do not demonstrate any complaints of hearing loss. Post-service medical evidence shows that the Veteran has bilateral hearing loss as he had 65 decibels at 4000 Hertz in both ears with a diagnosis of bilateral sensorineural hearing loss. See May 2014 VA audiological examination. The Veteran’s DD 214 Form shows his military occupational specialty was infantryman. The Veteran’s contentions are credible and consistent with the circumstances of his service. The Board has no reason to doubt the credibility of the Veteran’s contentions. The Board recognizes that there is an unfavorable VA opinion regarding the etiology of the Veteran’s bilateral hearing loss dated in May 2014. However, this opinion is of limited probative value as it is based on the absence of hearing loss in service and the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). To the extent that the examiner stated that the Veteran reported noticing hearing loss a few years ago and his occupational noise exposure could not be ruled out, the Veteran during his February 2021 Board hearing clarified that he has had hearing loss since service and wore mandatory hearing protection while working at the lumber mill after service. Thus, in viewing the evidence in the light most favorable to the Veteran, the Board finds that the evidence is in relative equipoise (evidence for and against the Veteran’s claim is essentially equal), the benefit-of-the-doubt rule applies and the claim of entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b). REASONS FOR REMAND Issues 2-4: Entitlement to service connection for PTSD; entitlement to service connection for a psychiatric disorder other than PTSD; and, entitlement to service connection for GERD with hiatal hernia. In statements and testimony the Veteran contends that he was sexually assaulted twice during service. See, e.g. February 2021 Board hearing transcript. The record does not show that the Veteran was advised of alternative sources of evidence denoted under 38 C.F.R. § 3.304(f)(5). Consequently, the Veteran must be advised of these provisions. See Bradford v. Nicholson, 20 Vet. App. 200, 205-06 (2006); see also Gallegos v. Peake, 22 Vet. App. 329, 336 (2008). The Veteran contends that his schizophrenia is due to service. See August 2014 statement. He also contends that his schizophrenia and GERD with hiatal hernia are secondary to PTSD. See February 2014 claim. Thus, these issues are intertwined with the issue of entitlement to service connection for PTSD. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran also testified that he was receiving disability mental health benefits from the Social Security Administration (SSA) and has been undergoing mental health treatment at the Roseburg VA Medical Center. On remand, all outstanding pertinent VA and SSA medical records need to be obtained and associated with the claims file. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding VA medical records, including from the Roseburg VA Medical Center. All attempts associated therewith should be memorialized in the Veteran’s claims file. 2. Obtain all the Veteran’s pertinent SSA records pertaining to the Veteran’s psychiatric disorder. Document all requests for information as well as all responses in the claims file. 3. Send the Veteran additional correspondence providing notification of the provisions of 38 C.F.R. § 3.304(f)(5) pertaining to the alternative sources of evidence which may be used to substantiate the occurrence of an in-service personal assault, in support of a claim for service connection for PTSD. Inform the Veteran of the opportunity to provide further evidence or information that pertains to the process of stressor verification. 4. Afterwards, schedule the Veteran for a VA psychiatric examination. After reviewing the claims folder, conducting all necessary tests, and examining the Veteran the examiner is asked to do the following: a.) Identify/diagnose all current psychiatric disorders per the DSM V criteria, to include whether the Veteran meets the criteria for PTSD. b.) If the Veteran is diagnosed with PTSD per the DSM V criteria, the examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s PTSD is based on an in-service personal assault stressor. In formulating the opinion, the VA examiner is asked to consider that the Veteran contends and his service personnel records show that he was promoted to PV2 in June 1976 and subsequent records show that he was demoted to PVC; in May 1977 he was absent from mandatory formation; in June 1977 there is a Record of Proceedings under Article 15; and, his DD 214 Form shows an administrative discharge conduct triable by court martial. The examiner also is advised that in a February 2014 PTSD stressor statement the Veteran reported that the first incident happened in January 1976 at Fort Polk, LA, where 3 guys sexually assaulted him at night and the second incident was in March 1976 at Fort Lewis, WA, where he was raped. The Veteran stated he reported this incident but his superior did not want to do any paperwork and told the Veteran to miss movement, which led to his court martial. The requested opinion should take into consideration all relevant evidence as well as the Veteran’s own assertions. c.) For any psychiatric disorder other than PTSD the examiner must opine whether it is at least as likely as not (50 percent or better probability) related to an in-service injury, event, or disease. d.) For any psychiatric disorder other than PTSD the examiner must opine whether it is at least as likely as not (50 percent or better probability) (a) caused or (b) aggravated by PTSD. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. 5. Afterwards, if warranted, schedule the Veteran for a VA examination to determine the nature and etiology of his GERD with hiatal hernia. After reviewing the claims folder, conducting all necessary tests, and examining the Veteran the examiner is asked to do the following: Opine whether it is at least as likely as not (50 percent probability or more) that the Veteran’s GERD with hiatal hernia was (a) caused or (b) aggravated by his psychiatric disorder. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.