Citation Nr: 21025414 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-08 521 DATE: April 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The Veteran has not been shown to have a bilateral hearing loss disability for VA purposes at any time since separation from active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1986 to May 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran’s February 2016 substantive appeal (VA Form 9), the Veteran elected a videoconference hearing before the Board. A hearing was scheduled for July 31, 2019. By correspondence dated July 1, 2019, the Veteran and the Veteran’s appointed representative were notified of the time and place of the hearing and were provided instructions for how to reschedule the hearing if the Veteran was unable to attend. The Veteran did not appear for the hearing and did not file a motion to reschedule within 15 days after missing the hearing. Therefore, her hearing request is deemed withdrawn. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist regarding the issue discussed on the merits below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, to include high frequency sensorineural hearing loss an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that her bilateral hearing loss is related to her active military service. Upon review of all evidence of record, the Board finds that the Veteran’s service connection claim must be denied. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Turning to the evidence of record, the Veteran underwent a January 2016 VA audiological examination. The examiner documented Maryland CNC speech discrimination scores of 96 percent in the left and right ear. The following pure tone thresholds, in decibels, were documented: Hertz: 500 1000 2000 3000 4000 Right ear: 10, 15, 10, 10, 20 Left ear: 15, 25, 25, 25, 35 The Board notes that while the examiner diagnosed the Veteran with left ear sensorineural hearing loss, the objective findings for speech discrimination and the auditory thresholds of the left and right ear do not meet the impaired hearing criteria for VA disability purposes. See 38 C.F.R. § 3.385. A VA hearing loss disability is based on documented pure tone thresholds in the frequency range of 500-4000 Hz. Id. The examiner’s left ear diagnosis was based in part on documented pure tone thresholds in the frequency range of 6000 Hz and higher. Thus, a current disability of hearing loss as recognized by VA regulations is not present in the left or right ear. Accordingly, in the absence of a current disability in either ear, the Board finds that service connection cannot be established. 38 C.F.R. § 3.385; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The most probative evidence of record, as discussed above, reflects the Veteran has not been shown to have a current disorder of hearing loss in either ear for VA purposes at any time since separation from service in May 1989. See 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). Additionally, the Board acknowledges the Veteran’s reference to medical literature supporting a delayed onset disability theory. However, because the Veteran does not meet the hearing loss disability threshold set forth in 38 C.F.R. § 3.385, the articles pertaining to the remaining service connection elements are inapplicable at this time. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim on direct and chronic presumptive bases, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Board has recharacterized the Veteran’s claim for PTSD due to military sexual trauma (MST) more broadly to an acquired psychiatric disorder, to include PTSD, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). The Veteran contends that her PTSD is the result of MST she suffered while in service in 1987. She alleges that as a result of the MST, she does not deal well with situations, cannot trust others, struggles with personal relationships, and self-medicates with alcohol. She is prescribed medication to treat her MST-related depression, anxiety attacks, and nightmares, which are triggered by exposure to violence. See VA Form 21-4138, received in February 2014; VA Form 21-0781a, received in May 2014. A remand is necessary because the heightened duty to assist claimants asserting claims for PTSD arising from in-service personal assault has not been met. 38 C.F.R. § 3.159(c); See Forcier v. Nicholson, 19 Vet. App. 414, 422 (2006). The heightened duty to assist includes furnishing an adequate clinical evaluation of behavior evidence. Id. While the Veteran was afforded a VA examination for PTSD in August 2014, the examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 310-12 (2007). In rendering a negative nexus and stressor corroboration opinion, the VA examiner acknowledged that the Veteran had been receiving VA mental health treatment for MST-related mental disorders for several years, but noted there was no “start date for any of [the diagnosed conditions] apart from [the Veteran’s] statements (uncorroborated by markers) about the sexual assault.” The examiner did not explain why prior providers’ findings were medically unsupported or discuss the Veteran’s reported post-assault pregnancy and sexually transmitted disease fears and testing; increased sick call visits; avoidance behaviors; frequent trouble sleeping; isolation; depression; and anxiousness. The examiner did not identify the relevant “markers” expected to be present in the Veteran’s case nor sufficiently explain the findings so that the Board could make an informed decision about the Veteran’s entitlement to compensation. An adequate opinion will address whether the evidence, including post-MST behavior, symptoms, and mental health disorders, is consistent with a sexual assault victim’s behavior. See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011); 38 C.F.R. § 3.304(f)(5). The August 2014 VA opinion also appears to be based on grossly inappropriate character and credibility determinations. The report notes the Veteran’s pre-service “school performance suffered by her ‘interest in boys’ & she was truant, liked to roam the downtown street of this small town, drink, & smoke.” It repeatedly references the Veteran’s intoxication during the personal assault and goes so far as to comment that her judgment was “questionable when drinking.” Consent or fabrication was also inferred from the her failure during the examination to describe her attackers as threatening or to describe her efforts to protest the rapes while they occurred, although it is unclear whether the examiner tried to develop that information before faulting the Veteran for not providing it. It is perhaps telling that the examiner did not consider rape a stressor warranting a PTSD diagnosis. The Board also questions the unsupported and seemingly illogical finding that the Veteran’s mental health disorder stems from her poverty, lack of stable housing, and lack of a social support network. Just as the Board may not make inferences resulting in medical determinations, Colvin v. Derwinski, 1 Vet. App. 171 (1991), medical professionals may not make inferences resulting in legal determinations such as credibility or probative value of evidence. See Sizemore v. Principi, 18 Vet. App. 264, 275 (2004) (“to the extent that the examining psychiatrist is expressing an opinion on whether the appellant’s claimed in-service stressors have been substantiated, that is a matter for determination by the Board and not a medical matter”). Lastly, review of the claims file indicates that there may be outstanding relevant service records and VA medical records because the records were requested under the Veteran’s married or maiden name, but not under both names. There appear to be pages missing from the STRs. Additionally, VA mental health records from August 2009 VA and December 2013 show there may be “several years” of outstanding VA mental health records predating August 2009. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue[s] on appeal. A remand is required to allow VA to obtain them. 2. Entitlement to service connection for tinnitus The Veteran contends that her tinnitus began in service as a result of acoustic trauma and has been continuous since then. See November 2014 Notice of Disagreement. However, she also stated that her tinnitus became an issue approximately six months after separation from service. See February 2016 VA Form 9; January 2016 VA examination report. Following the clinical evaluation in January 2016, ot include a diagnosis of tinnitus, the VA examiner opined that the Veteran’s current tinnitus is not related to her military service. It was explained, in part, that her tinnitus was not related to service because she wore hearing protection and she did not show threshold shifts or changes in service that were consistent with noise exposure. On the other hand, service personnel records show that the Veteran served as a parachute rigger, and acoustic trauma during the Veteran’s period of active service has been conceded by VA. See January 2016 Statement of the Case. Thus, the Board finds that the Veteran suffered an in-service injury, namely exposure to noise. As a result, the Board finds that an addendum VA medical opinion is needed to properly adjudicate this claim at this time. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate. Barr, 21 Vet. App. at 312. The matters are REMANDED for the following actions: 1. Send the Veteran notice required for PTSD claims based on personal assaults and allow time for a response. Then, attempt to corroborate the Veteran’s in-service stressor based on personal assault, including obtaining service records or other evidence of behavioral changes. If more details are needed, contact the Veteran to request the information. 2. Attempt to obtain a complete copy of the Veteran’s service personnel and service treatment records that may be stored, archived, or located under her maiden name and any married name she had during her period of active military service. 3. Obtain the Veteran’s VA treatment records, including mental health records, for the period from May 1989 to the present may be stored, archived, or located under her maiden name and any married name she has had since May 1989. 4. Then, provide the claims file to an appropriate clinician to provide a supplemental opinion regarding the Veteran’s acquired psychiatric disorder. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: The Veteran reported an in-service occurrence, to include a MST, in the following records: VA Form 21-0781a (Statement in Support of Claim for Service Connection for PTSD) dated in February 2014 and May 2014; VA Form 9 (Substantive Appeal) dated in February 2016. The examiner must opine as to the following: (a.) For any psychiatric diagnosis (other than PTSD), to include depression and mixed anxiety/depression (even if since resolved), whether it is at least as likely as not began during active service or is related to any event of service, to include the alleged in-service personal assault. Note - It is not sufficient to provide an opinion that the Veteran’s psychiatric diagnosis (other than PTSD) is not directly due to the alleged in-service personal assault merely because it is not confirmed. (b.) For PTSD (even if since resolved), whether it is at least as likely as not began during active service or is related to any event of service, to include the alleged in-service personal assault. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Return the Veteran’s claims file to the examiner who conducted the January 2016 VA examination for hearing loss and tinnitus so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. For purposes of this remand, the examiner must assume the Veteran had in-service acoustic trauma. The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus began during active service, is related to in-service acoustic trauma, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 7. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jones, Catherine J. 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.