Citation Nr: 21031366 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-20 441 DATE: May 21, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for insomnia and sleep disorder is remanded. Entitlement to service connection for fatigue is remanded. Entitlement to a compensable disability rating for left ear hearing loss is remanded. FINDING OF FACT 1. The Veteran's PTSD is attributable to traumatic experiences during his service. CONCLUSION OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1992 to July 1996. In August 2012 he sought service connection for hearing loss. In a July 2013 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for left ear hearing loss and denied service connection for right ear hearing loss. The RO assigned a 0 percent, noncompensable disability rating for his left ear hearing loss. In August 2015 the Veteran sought service connection for PTSD, fatigue, sleep disorder and insomnia. In a December 2015 rating decision, the RO denied service connection for PTSD, for sleep disorder and insomnia, and for fatigue. The RO continued the 0 percent rating for left ear hearing loss. The Veteran appealed those decisions to the Board of Veterans' Appeals (Board). In January 2020 the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge. 1. Service connection for PTSD The Veteran contends that he has PTSD as a result of traumatic experiences in service. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). PTSD is a mental disorder that develops as a result of traumatic experience. It is possible for service connection to be established for PTSD that becomes manifest after separation from service. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (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). The evidence necessary to establish the occurrence of a recognizable stressor during service varies depending on the circumstances of the veteran's service and of the claimed stressor. If the veteran engaged in combat with the enemy, the claimed stressor is related to that combat, and the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, then, in the absence of clear and convincing evidence to the contrary, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). The United States Court of Appeals for Veterans Claims (Court) has indicated that whether a veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). Similarly, if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity, a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, then, in the absence of clear and convincing evidence to the contrary, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). If a PTSD claim is based on inservice personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. 38 C.F.R. § 3.304(f)(5). If a veteran's service and claimed stressors were not under circumstances that provide for his or her lay testimony alone to establish the occurrence of the stressor, the record must contain service records that corroborate the veteran's testimony as to the occurrence of the claimed stressor. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Court has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In 2009 the Veteran submitted a claim for service connection for two disorders. The RO sought the Veteran's service treatment records (STRs) from the government archival agency. That agency informed the RO that searches failed to locate the records. VA informed the Veteran of the unavailability of the records. In April 2010 the RO issued to the Veteran's file a memorandum making a formal finding on the unavailability of his STRs. Destruction or unavailability of service records does not create a heightened benefit of the doubt, but does create a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). Where service records are missing, VA also has a duty to search alternate sources of service records. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran reported that, during his service aboard the aircraft carrier USS America (CV-66), the carrier was involved in many combat operations. He stated that, during a transfer of supplies between ships, he saw a fellow sailor fall overboard nearby. The Veteran reported that he saw the sailor in the water, saw him get washed away, and then never saw him again. The Veteran reported an explosion aboard the USS America in March 1994. He stated that the explosion was powerful and extremely unnerving. He related that General Quarters sounded. He stated that he and others donned firefighting equipment and followed orders to go lower into the ship and close doors. He stated that they worked in smoke-filled areas. He related that the extent of the danger was unknown and that he felt frightened while carrying out his duties. He stated that he saw sailors without respirators who were disoriented and panicked. He indicated that he eventually learned that a boiler had exploded. The Veteran's service discharge shows his Navy service with a specialty of aviation boatswain's mate. He was recognized for Southwest Asia service. His last assignment was on the USS America. The Defense Personnel Records Information Retrieval System (DPRIS) searched for records regarding the sailor the Veteran named as having fallen overboard from the USS America. DPRIS did not find a report of such an incident. DPRIS found a record of the death of a sailor with a name with slightly different spelling. That sailor died in February 1994 while assigned to the USS America, but he died while ashore in Virginia, from injuries from an automobile accident. In August 2019, A. C. wrote that he served with the Veteran aboard the USS America. Mr. C. reported that, when the March 1994 explosion occurred aboard that carrier, the Veteran's crew had to make their way through a lot of chaos and smoke-filled interior spaces to perform their assigned duties in response to the emergency. In October 2019, G. G. wrote that he was with the Veteran aboard the USS America when the March 1994 explosion occurred. Mr. G. reported that the explosion caused the ship to rock, and that spaces filled with smoke. Mr. G. stated that their crew fought the fire and secured areas of the ship. On March 12, 1994, the Daily Press of Norfolk, Virginia reported on a boiler explosion aboard the USS America the previous morning. The reporter wrote that the explosion placed the carrier crew on alert and caused minor injuries to three crew members. The ship's deck log of the USS America shows that on March 11, 1994, at 8:35 am, there was an unknown explosion with smoke and fire onboard. General Quarters was sounded. Actions were taken to investigate the explosion, fight the fire, and secure areas of the ship. In 2009 the Veteran sought evaluation for problems with attention, memory, and concentration. Clinicians diagnosed attention deficit hyperactivity disorder (ADHD) and adult attention deficit disorder (ADD). They prescribed the medication Vyvanse. The Veteran had further treatment in 2011 and 2012 for those issues and for mood swings. In September 2016, private therapist T. P., LMFT, wrote that he saw the Veteran in May 2016 for an assessment. Mr. P. stated that based on the Veteran's symptoms then, he met the diagnostic criteria for PTSD and major depression. Mr. P. reported that the Veteran had been seen for two follow-up sessions since the initial meeting. On VA examination in July 2017, the Veteran reported that from 2016 he had been in private mental health treatment for bipolar mood disorder and PTSD. The examining psychologist stated that the treatment records were not available for review. The examiner observed that the Veteran was oriented, with euthymic mood, appropriate affect, and normal speech and thought process. The examiner deferred diagnosis pending receipt and review of the Veteran's mental health treatment records. In November 2017 the September 2017 VA examiner provided an addendum to the examination report. The examiner reported having reviewed the Veteran's private mental health treatment records, including the September 2016 letter from the therapist Mr. P. The examiner expressed the opinion that it is at least as likely as not that the Veteran meets the diagnostic criteria for PTSD related to his reported military stressors. The Veteran's private treatment records from November 2019 contain a medication list that includes medication for anxiety. In the January 2020 Board hearing, the Veteran reported that many incidents happened during his more than three years serving on the flight deck of the USS America. He stated that the 1994 explosion was so forceful that the huge ship rocked and bounced. He reported that spaces filled with smoke and General Quarters sounded. He related that he was among those instructed to put on firefighting gear and go deeper into the ship to respond to investigate and respond to the explosion. He stated that there was an environment of chaos. He related that he and others reacted with panic and fear. He related that at times he froze because he could not see through the smoke. The Veteran reported that since service he had anxiety and he was moody. He indicated that he was uncomfortable in crowds. He stated that he was withdrawn from people, which caused problems in his family life. He related that he had anger issues and verbal outbursts that caused problems at work and at home. He stated that he had been diagnosed with PTSD. He reported that the therapist he sees related his PTSD to his experiences in service. He related that PTSD symptoms, such as lashing out in his sleep, began to occur within a few years after his separation from service. He indicated that after many years of urging from his wife he consulted doctors and therapists about his sleep, memory, mood, and anger issues. The Veteran's therapist Mr. P. and the 2017 VA examiner diagnosed the Veteran with PTSD. Each linked the Veteran's PTSD to his stressors in service. His stressor of the explosion aboard the USS America is documented in the ship's logs. There is sufficient evidence of a stressor in service, a diagnosis of PTSD, and a relationship between an-in-service stressor and the PTSD. The Board grants service connection for his PTSD. REASONS FOR REMAND 1. Service connection for insomnia and sleep disorder The Veteran contends that he has insomnia and a sleep disorder that began during service and are manifestations of his PTSD. He has reported that in service he worked long hours and shifts with minimal sleep. He has stated that after service he was never able to return to normal sleep patterns. He has related trouble sleeping since then. He has stated that he awakened two or three times each night and had trouble returning to sleep. The claims file contains records of treatment of the Veteran in 2009 through 2012 for attention deficit disorders. Treatment records reflect the Veteran's report of insomnia after staring medication for the address an attention disorder. Clinicians who have treated and examined the Veteran have not discussed the nature and etiology of his insomnia and sleep problems. The Board is remanding the service connection claim for a VA medical file review and opinion addressing those matters. 2. Service connection for fatigue The Veteran contends that he has fatigue as a result of his insomnia and sleep disorder. In September 2017 the Veteran had a VA chronic fatigue syndrome (CFS) examination. He reported that sometime after his separation from service he began to experience fatigue. He related that presently he awakened at night and had difficulty getting back to sleep. He stated that his sleep was interrupted and limited to a total of about five hours per night. He related that he woke up tired. He stated that at work he felt tired and had difficulty concentrating and focusing. The examiner found that the Veteran's symptoms did not meet the criteria for a diagnosis of CFS. The examiner stated that his reported fatigue more likely than not was due to his insomnia and was a side effect of medication for his ADD. In the January 2020 Board hearing, the Veteran reported that he had difficulty sleeping. He stated that during workdays he felt tired and exhausted and he had difficulty following instructions. He indicated that clinicians had related his fatigue to his inadequate sleep. The Veteran has not been found to have CFS, but he has consistently reported fatigue. The 2017 examiner noted both impaired sleep and ADD medication as likely causes of his fatigue. The Board is remanding the service connection claim for further VA examination medical file review and opinion addressing the likely etiology of his fatigue. 3. Disability rating for left ear hearing loss The Veteran appealed the December 2015 rating decision continuing a noncompensable disability rating for his left ear hearing loss. He contends that his left ear hearing loss has worsened over time. The most recent examination of his hearing was a VA examination in April 2017. In the January 2020 Board hearing, he asserted that his hearing had worsened since that examination. The Board is remanding the appealed rating issue for a new VA examination to obtain current findings. The matters are REMANDED for the following action: 1. Provide the Veteran's expanded claims file to an appropriate VA clinician for review and opinion regarding the history and etiology of his claimed insomnia, sleep disorders, and fatigue. Ask the reviewer to state whether the Veteran's reported symptoms are consistent with insomnia, a sleep disorder, and/or fatigue. For each sleep disorder, including any insomnia, ask the reviewer to provide opinion as to whether it is at least as likely as not that the disorder began during the Veteran's service and continued after service, is proximately due to or the result of his posttraumatic stress disorder (PTSD), or is aggravated by his PTSD. For any disorder manifested by fatigue, ask the reviewer to provide opinion as to whether it is at least as likely as not that the disorder began during the Veteran's service and continued after service, is proximately due to or the result of PTSD, insomnia, or other sleep disorder, or is aggravated by PTSD, insomnia, or other sleep disorder. Ask the reviewer to provide explanation of each finding and conclusion. 2. Schedule the Veteran for a VA audiological examination to obtain current findings as to his hearing loss. Administer audiometric and speech discrimination testing the report the findings. 3. Then review the expanded claims file and review the remanded claims. If any claim is not granted to the Veteran's satisfaction, issue a supplemental statement of the case, and afford the Veteran and his representative an opportunity to respond. Then return the case to the Board for appellate review, if otherwise in order. K. PARAKKAL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.