Citation Nr: 21029238 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 19-24 028 DATE: May 13, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for residuals of traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The Veteran's PTSD is due to an in-service personal assault. 2. The evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to in-service acoustic trauma. 3. The evidence of record indicates the Veteran has never been diagnosed with a TBI. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for residuals of TBI are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to December 1980. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision in November 2016 by the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims of service connection for PTSD, tinnitus, and head injury. In September 2019, the Board remanded the matters for further development, to include VA examinations. The Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's September 2019 remand instructions by, as demonstrated by the discussion below, obtaining a VA opinion in regard to the Veteran's claim for service connection for residuals of TBI that is adequate to decide the claim. Thus, no further action is necessary in this regard. As the Board is granting the claims of service connection for PTSD and tinnitus in full, discussion of compliance with the Board's September 2019 remand instructions is unnecessary in regard to those claims. Stegall v. West, 11 Vet. App. 268 (1998). Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Entitlement to service connection for PTSD due to MST The Veteran contends that he has PTSD from an in-service personal assault where he was attacked and physically beaten by five men while stationed at Fort Eustis, Virginia. Specifically, during a January 2021 private psychological evaluation, the Veteran reported that the assailants had beaten him so badly that they thought he was dead, so they dragged his body into the woods and left him there. The Veteran regained consciousness, went to the infirmary for treatment, and learned he had a broken nasal passage and broken facial bones. He indicated that he hid in the barracks after the incident and that he subsequently was transferred to Fort Dix, New Jersey, although he went Absent Without Leave (AWOL) for 30 days prior to reporting to his new assignment because he was so scared from the assault. There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to, records from law enforcement authorities, mental health counseling centers, hospitals, or physicians, and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. For the following reasons, service connection for PTSD due to an in-service personal assault is warranted. A February 2020 VA psychologist did not diagnosis the Veteran with PTSD, but diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood, alcohol use disorder, and opiod use disorder. A January 2021 private psychologist diagnosed the Veteran with PTSD. Given the conflicting diagnoses with regard to PTSD, the evidence is at least evenly balanced on this point. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Veteran has a diagnosis of PTSD and has met the current disability requirement. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim and not only its ultimate disposition); Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020). In addition, there is competent medical evidence linking the Veteran's diagnosed PTSD to in-service stressors. In January 2021, a private psychologist found that it was more likely than not that the Veteran's PTSD was caused by his military service. Based on his review of relevant service records, treatment records, the examination, and a full history from the Veteran, who the psychologist found was a reliable historian, it was his opinion that it was more likely than not that the in-service stressor of the personal assault caused the Veteran to acquire chronic symptoms of PTSD during military service with secondary alcohol and drug abuse, in remission, with these symptoms persisting continuously to the present day. It was the psychologist's opinion that the Veteran began to self-medicate his untreated PTSD with alcohol and drugs during active duty. His military record before his traumatic experiences showed that the Veteran was a stellar soldier. However, after the traumatic event, there was a decline in military performance. The use of alcohol and drugs to self-medicate was directly linked to his duty at Fort Eustis. A manifestation of chronic PTSD symptoms continued in service, which resulted in the Veteran being disciplined with loss of rank. As the private psychologist explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his opinion is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Therefore, the competent medical evidence of record supports the conclusion that the Veteran's currently diagnosed PTSD is due to his in-service personal assault. The final issue to address is whether there is credible supporting evidence that the claimed in-service stressor occurred. The Board recognizes that the present case, involving allegations of personal assault, falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events about which a veteran complains. Patton v. West, 12 Vet. App. 272, 281 (1999). Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. YR v. West, 11 Vet. Ap. 393, 399 (1998). The Veteran's reports of his in-service stressor are competent and credible. As noted above, the current PTSD regulation relating to personal assault reflects VA's judgment that unreported personal assaults occur frequently in the military. See Proposed Rule, PTSD Based on Personal Assault, 65 Fed. Reg. 61132 (Oct. 16, 2000) ("Many incidents of in-service personal assault are not officially reported, and veterans may find it difficult to produce evidence to prove the occurrence of this type of stressor"). The record does not include any contemporaneous corroborating evidence, such as police reports or medical examinations. However, the Veteran has consistently stated throughout his VA medical treatment records that he was attacked by five NCOs in service while stationed at Fort Eustis. In a May 2016 buddy statement, the Veteran's friend stated that he noticed the Veteran was different after he separated from service. In the statement, the friend indicated that the Veteran told him about an incident in service where he was beaten up by a group of NCOs and had not felt right since the incident. The Veteran also told him he had gotten into some trouble with legal issues. This evidence of behavior change is additional competent and credible evidence of the in-service stressor. There is also additional evidence of a behavioral change in service as after the assault, the Veteran was charged with violating Article 86 for being AWOL for 30 days, behavior that was not displayed prior to the assaults. Therefore, the buddy statement and disciplinary action corroborate the Veteran's competent and credible reports of an in-service personal assault. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to all aspects of a case and not only the ultimate disposition). Thus, the lay statements from the Veteran's friend, as well as the disciplinary action, are significant competent and credible evidence in support of the occurrence of the Veteran's report. In addition, the private psychologist in January 2021 determined that the Veteran experienced PTSD symptoms related to his claimed in-service personal assault. Cf. Menegassi v. Shinseki, 628 F.3d 1379, 382 & n. 1 (Fed. Cir. 2011) (under 38 C.F.R. § 3.304(f)(5), medical opinion evidence obtained by VA may be submitted for use in determining whether a claimed stressor occurred, and such opinion evidence should be weighed along with the other evidence of record in making this determination). Therefore, there is credible supporting evidence of record that the claimed in-service stressors occurred. For the foregoing reasons, given the evidence of record showing a diagnosis of PTSD based on credible and competent supporting evidence that the in-service personal assault occurred, entitlement to service connection for PTSD is warranted. The Board notes that the Veteran has been diagnosed with adjustment disorder with mixed anxiety and depressed mood during the appeal period. The Board will not address whether these diagnoses are related to service because there is no evidence in this case differentiating between the effects of PTSD and the other psychiatric disorders, and when VA cannot differentiate between the effects of a service-connected and non-service-connected disorder, it must attribute the effects to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Entitlement to service connection for tinnitus The Veteran contends his tinnitus is related to his in-service personal assault. He additionally reported military noise exposure, to include turbines, explosives, and attack helicopters, as well as noise exposure while in a Navy brig. The Veteran denied use of hearing protection. During a January 2020 VA examination, the Veteran reported that his constant tinnitus in both ears began following an in-service personal assault. The VA audiologist found that it was less likely than not that the Veteran's tinnitus was a symptom associated with the Veteran's hearing loss. She reasoned that service treatment records indicated no hearing loss presented at separation and no evidence of permanent auditory damage on active duty. Thus, there was no nexus of auditory damage on active duty to relate the current report of tinnitus to military noise. The VA audiologist noted in a November 2020 addendum opinion that the Veteran's tinnitus was less likely than not related to a service-connected head injury. She reasoned that the although the Veteran self-reported a head injury on discharge documentation, there was no evidence in his service records to substantiate the claim of a head injury during service. For the following reasons, entitlement to service connection for tinnitus is warranted. The Veteran is competent to identify tinnitus, as ringing in the ears is readily observable by laypersons and does not require medical expertise to establish its existence. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the Veteran has a current disability of tinnitus. The Veteran reported that he suffered in-service noise exposure while aboard naval vessels and is competent to report such in-service noise exposure. Jandreau v. Nicholson, 492 F.3d 1372,1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). There is nothing to explicitly contradict his reports of in-service noise exposure, and his reports are consistent with the evidence of record and the circumstances of his service. 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Therefore, the Veteran's reports of in-service noise exposure are competent and credible, and the Veteran meets the in-service injury or disease requirement. Thus, the dispositive issue in this case is whether there is a nexus between the current tinnitus and the in-service noise exposure. The January and November 2020 VA opinions are afforded little probative value as they relied on the lack of contemporaneous medical evidence without considering the Veteran's lay statements regarding continuous tinnitus symptoms in and since separation from service. Buchanan, 451 F.3d at 1336 (VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Moreover, the evidence of record contains competent and credible evidence of tinnitus since service. Jandreau, 492 F.3d at 1377 (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan, 451 F.3d at 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The evidence of record includes inadequate VA opinions and competent and credible lay statements regarding the Veteran's continuous symptoms of tinnitus and its relation to his in-service acoustic trauma. To the extent that the grant of service connection in this case is based primarily on lay evidence, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Id. at 1335. At this point, the Board could remand the claim for a VA examination or opinion. However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'" (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to in-service acoustic trauma. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, service connection is warranted for tinnitus. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for residuals of TBI The Veteran contends he suffered a TBI from his in-service personal assault. A February 2020 VA examination found no diagnosis of a TBI. The VA physiatrist noted that the Veteran self-reported his personal assault, and there was no evidence in his service record to substantiate his report. During the examination, the Veteran reported mild memory loss, mildly impaired judgment, and occasionally inappropriate social interaction. The VA physiatrist found that these complaints were due to another etiology and not TBI, and that the Veteran may have a psychiatric disorder which could result in similar symptoms. Furthermore, the Veteran's December 1980 Report of Medical History did not mention TBI symptoms, and there was no evidence of complaints, diagnosis, or treatment of TBI in his records. There was no Report of Medical Examination from separation from service associated with the Veteran's claims file. As the VA physiatrist explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his opinion is entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. at 304; Acevedo, 25 Vet. App. at 294. There is no other medical opinion or evidence of record on this question, and the Veteran's statements as to whether his in-service personal assault caused a TBI is a complex medical question as to which lay witnesses are not competent to opine. Jandreau, 492 F.3d at 1376, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Veteran is competent to report that he experienced memory loss after the in-service personal assault and that he has experienced mild memory loss symptoms since service. There is no reason to doubt the credibility of the Veteran's reports, particularly given the consistency of his statements. While the Veteran is competent to report that he has experienced mild memory loss symptoms since service, the question of whether these symptoms are residuals of a TBI is of the type that the courts have found to be beyond the competence of lay witnesses. Id. Thus, the Veteran's assertions as to the etiology of his neurological symptoms are not competent. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for service connection for residuals of a TBI. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.