Citation Nr: 21030613 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 13-35 461 DATE: May 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder is granted. FINDINGS OF FACT 1. The Veteran does not have bilateral hearing loss as defined by VA regulations. 2. There is a balance of evidence on the question of whether major depressive disorder is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1984. These matters come before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in November 2016. A transcript of the hearing is in the Veteran's file. This claim was previously remanded by the Board in April 2018 and December 2020 for further development. That development having been completed; the case is now again before the Board. Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including other organic diseases of the nervous system, which includes sensorineural hearing loss, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss, which he says is related to excessive noise exposure during his military service. Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The Veteran underwent a VA audiological examination in November 2013. The audiometric testing in the Veteran's right ear disclosed hearing threshold levels in decibels of 15, 10, 10, 20, and 10, at 500, 1,000, 2,000, 3,000 and 4,000 Hertz. The audiometric testing in the left ear disclosed hearing threshold levels in decibels of 15, 10, 10, 20, and 15, at 500, 1,000, 2,000, 3,000 and 4,000 Hertz. The Veteran's Maryland CNC speech recognition scores were 100 percent for the both ears. Thus, the findings from the November 2013 VA audiology examination does not satisfy the criteria for a bilateral hearing loss disability under 38 C.F.R. § 3.385. At the November 2016 Board hearing, the Veteran testified that he has difficulty hearing people talk and must ask them to speak louder. He also believed he had hearing tests in the 1990s at VA, however, treatment records demonstrate he established care at VA in 2000. VA treatment records include several audiological assessments. In June 2012, the Veteran stated he needed a hearing test because he puts his television on too high and he has an auditory processing disorder. On evaluation, however, his hearing was within normal limits bilaterally. In September 2017, after complaints of difficulty understanding conversational speech, a comprehensive audiologic assessment showed normal hearing. In June 2018, VA treatment records show the Veteran inquired about a personal amplifier due to on-going hearing difficulties, but a hearing evaluation revealed normal hearing bilaterally. He was also advised that a personal amplifier should only be used when there is a medical need and if hearing loss is present. He was also warned that some amplifiers are very loud and if he purchased his own amplifier, it could cause hearing loss. The Veteran was afforded another VA audiological examination in September 2019. The examination showed significantly higher pure tone thresholds, however, the examiner found the test results were not valid for hearing loss rating purposes. The audiometric testing in the Veteran's right ear disclosed hearing threshold levels in decibels of 45, 50, 55, 75, and 70, at 500, 1,000, 2,000, 3,000 and 4,000 Hertz. The audiometric testing in the left ear disclosed hearing threshold levels in decibels of 55, 70, 75, 65, and 65, at 500, 1,000, 2,000, 3,000 and 4,000 Hertz. Speech discrimination scores were 100 percent in the right ear and 96 percent in the left ear, but the examiner noted the pure tone averages did not agree with speech reception thresholds bilaterally. The examiner also noted speech discrimination scores were not appropriate for this Veteran because of language difficulties, cognitive problems, and inconsistent speech discrimination scores, that make combined use of puretone average and speech discrimination scores inappropriate. The examiner then offered an opinion that it is at least as likely as not the Veteran's noise exposure, including field artillery, automatic rifles, mortars, grenades, vehicle noise, generators, and howitzers, during the service, contributed to the difficulties he has understanding conversation, even though the current testing was inconclusive. Since the audiological examination results were not considered valid, the speech discrimination scores were not considered appropriate, and the September 2019 examiner offered an opinion that addressed difficulties understanding, rather than hearing loss, this report is accorded little probative value in connection with this appeal. The Veteran underwent another VA examination in February 2021, which did not show a hearing loss disability for VA purposes in either ear based upon puretone thresholds and the speech discrimination scores. The audiometric testing in the Veteran's right ear disclosed hearing threshold levels in decibels of 15, 5, 10, 20, and 10, at 500, 1,000, 2,000, 3,000 and 4,000 Hertz. The audiometric testing in the left ear disclosed hearing threshold levels in decibels of 10, 5, 5, 20, and 15, at 500, 1,000, 2,000, 3,000 and 4,000 Hertz. The Veteran's Maryland CNC speech recognition scores were 100 percent for the both ears. The examiner noted the Veteran had normal hearing on entrance and separation in service and had normal hearing in June 2012 and September 2017, and the August 2019 hearing test was invalid. The examiner opined that the Veteran's hearing was within normal limits and therefore, it is less likely than not that his hearing loss is due to military noise exposure or acoustic trauma. The Board places high probative value on this opinion as it is based on valid test results. In order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), the Court noted that Congress specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Id.; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). The Board notes that the Veteran is competent to report a history of in-service noise exposure and difficulty understanding speech. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, a review of the record shows no valid diagnosis of bilateral hearing loss for VA purposes. Hearing loss disability for VA purposes is not a simple medical condition capable of lay observation or diagnosis, and the Veteran is not shown to be qualified through specialized education, training, or experience to diagnose a hearing loss disability for VA purposes. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not applicable, and the Board must deny the claim for service connection for bilateral hearing loss. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder The Veteran contends that he acquired a psychiatric disorder from his experiences in the military, to include stress from being teased and harassed. He contends that he started experiencing mental health problems related to depression while in service, but he did not seek treatment until after service due to fear of mental health stigma in the military. Service treatment records (STRs) are silent for any complaints, diagnosis, or treatment of any psychiatric condition. Two year post-service, in October 1986, the Veteran was admitted to a mental health facility after a suicide attempt and was diagnosed to have an adjustment disorder and depressed mood. Thereafter, the Veteran was seen for a depressive reaction in January 1987. An examination report identified as an enlistment examination in the Army Reserves reflects the Veteran was on anti-depressant medication, and medical records from 1989 show the Veteran was seen for possible major depression with a 2 12 year history. Later records show the Veteran is considered to have a learning disability, specific for reading and written expression; personality disorders, as well as dysthymic disorder, and major depressive disorder. In November 2018, the Veteran's VA treating psychiatrist submitted a letter and noted the Veteran was diagnosed with dysthymic disorder and ADD. Considering the Veteran's history, including his hospitalization in 1986, she expressed her belief the Veteran began dealing with symptoms of anxiety and depression while in the military, in response to verbal harassment he experienced at that time. (In this regard, statements from those with whom the Veteran served corroborate the harassment he received in service in response to his in-service performance, which was judged to be below standards.) VA examinations were conducted in connection with this appeal in September 2019 and January 2021. The 2019 examiner did not find the Veteran's disability (major depressive disorder) was incurred in service, primarily because of the absence of any in-service record of treatment or complaints, and that the history of depression was not documented until 3 years after service. The January 2021 examiner concluded the Veteran had a personality disorder, which was related to childhood experiences. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current acquired psychiatric disability, major depressive disorder, was incurred in service. The Veteran credibly attested to depressive symptoms present during service, and which were medically documented relatively soon thereafter. Further, a VA treating physician considered the Veteran's symptoms to have begun during service. While a VA examiner did not find the Veteran's psychiatric disorder to have incurred in service, and some elements of his presentation (such as his personality disorder) may not be service connected pursuant to 38 C.F.R. § 3.304, the adverse opinion did not fully explore the Veteran's reported history, nor acknowledge all the psychiatric treatment from the first 3 year post-service period. (Continued on the next page) On this record, the Board concludes the evidence is in relative equipoise on whether major depressive disorder had its onset during service. While one examiner found otherwise, symptoms of depression were documented within a few years of service; the Veteran reported symptoms were present during service; and a treating physician linked the Veteran's depressive disorder to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for major depressive disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.