Citation Nr: 21039784 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-17 665 DATE: July 1, 2021 ORDER Service connection for an acquired psychiatric disorder, diagnosed as post-traumatic stress disorder (PTSD) and unspecified trauma and stressor-related disorder, is granted. REMANDED Service connection for a disability of the ears, to include hearing loss and recurrent chronic otitis media, is remanded. Service connection for tinnitus is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric disorder, diagnosed as PTSD and unspecified trauma and stressor-related disorder, is related to his military service. CONCLUSION OF LAW The criteria for an award of service connection for an acquired psychiatric disorder, diagnosed as PTSD and unspecified trauma and stressor-related disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1966 to July 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously before the Board in September 2019, when they were remanded to the Agency of Original Jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial of the remaining issues in a September 2020 Supplemental Statement of the Case (SSOC), and returned the case to the Board. Service Connection Service Connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service injury or disease. See e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for an acquired psychiatric disorder is granted. The Veteran contends, in essence, that he is entitled to service connection for an acquired psychiatric disorder (claimed as PTSD), as the condition is due to trauma associated with his experiences during his service, including his service in Vietnam. A November 2019 VA examiner diagnosed the Veteran with unspecified trauma and stressor-related disorder. The Veteran reported that while he was in Vietnam, he was exposed to dead bodies on the side of the road, and stated that his unit left an area that was hit when a new unit arrived, killing the soldiers in that unit. He indicated that he witnessed an area of helicopters get burned up and the rockets equipped on the helicopters began to launch. He noted that he had to take cover in a foxhole to avoid being injured. The November 2019 VA examiner noted mental health records going back to October 2010 documenting complaints of insomnia, nightmares, depression, and anxiety disorders. The examiner opined that the Veteran's acquired psychiatric disorder was at least as likely as not incurred in or caused by his claimed in-service injury, event, or illness. The examiner indicated that his claimed symptoms were related to his in-service stressors, and that he met the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria for the disorder. The examined explained that the Veteran's unspecified trauma and stressor-related disorder is considered a subthreshold diagnosis for PTSD. The examiner noted that he experienced nightmares, difficulty sleeping, and avoidance of talking about his service in Vietnam due to experiencing traumatic experiences. Based on the medical evidence of record, the Board finds that the evidence is in relative equipoise as to whether the Veteran's acquired psychiatric disorder, diagnosed as PTSD and unspecified trauma and stressor-related disorder, is related to the traumatic events that he experienced during his military service. The examiner opined that the Veteran acquired psychiatric disorder was due to his claimed stressors, and the Board finds that those stressors are generally consistent with the circumstances of his service. Based on the foregoing, and after resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disorder, diagnosed as PTSD and unspecified trauma and stressor-related disorder, is warranted. The appeal of this issue is granted. REASONS FOR REMAND 1. Service connection for a disability of the ears, to include hearing loss and recurrent chronic otitis media, is remanded. 2. Service connection for tinnitus is remanded. The Veteran contends, in essence, that he is entitled to service connection for hearing loss and tinnitus, as the conditions are due to acoustic trauma he experienced during his military service and/or due to chronic ear infections that began during his service in Vietnam. In the September 2019 remand, the Board directed the AOJ to schedule the Veteran for a VA medical examination to evaluate the nature and etiology of his ear disabilities, including chronic otitis media, hearing loss, and tinnitus. The Board specifically requested that the examiner address whether his recurrent chronic otitis media was related to his ear infections experienced in service. The Board reminded the examiner that, based on the combat presumption, the Veteran's report of ear infections during service must be accepted as sufficient, regardless of lack of information in the service treatment records. The examiner was also directed to consider the evidence of chronic ear infections throughout the appeal period, as well as the VA examination linking his hearing loss and tinnitus to his chronic ear infections. The claims file reflects that the AOJ requested the appropriate examinations; however, the examiner that conducted the Veteran's examination concerning his ear disabilities failed to fully address the evidence outlined by the Board. Therefore, there has not been substantial compliance with the Board's remand directives concerning the issues of entitlement to service connection for hearing loss and to service connection for tinnitus. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In the November 2019 VA examination, the examiner noted operations in 1989 and 1996 for chronic otitis media of the right ear. The examiner listed diagnoses of cholesteatoma, in 1996, and chronic otitis media, in 1989. The Veteran reported that following his deployment to Vietnam, he began suffering from recurrent right ear infections, and sought medical attention and was diagnosed with chronic otitis media. He indicated that his condition had progressed, and that he suffered from ear infections monthly. He stated that he experienced pain and worsened hearing loss. The examiner opined that the Veteran's claimed conditions were less likely than not incurred in or caused by his claimed in-service injury, event, or illness. The examiner indicated that his service treatment records were negative for any complaints or treatment of otitis media or other ear conditions during his active duty service. The examiner concluded that a nexus could not be established. The Board finds that the November 2019 VA opinion does not comply with the Board's remand instructions. The examiner did not address whether the Veteran's recurrent chronic otitis media was related to his ear infections experienced in service. In this regard, it does not appear that the examiner accepted as sufficient the Veteran's reports of ear infections during service as noted by the September 2019 Board remand. The examiner did not otherwise consider the evidence of chronic ear infections throughout the appeal period, as well as the VA examination linking his hearing loss and tinnitus to his chronic ear infections The Board also notes that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Based on the foregoing, the Board finds that remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's disability of the ears, to include hearing loss and recurrent chronic otitis media, as well as his tinnitus. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Arrange for the claims file to be reviewed by an appropriately qualified examiner for the purpose of preparing an addendum opinion with respect to the Veteran's disabilities (disability of the ears, to include hearing loss and recurrent chronic otitis media, as well as his tinnitus). If the examiner finds that another examination of the Veteran is required, one should be undertaken After reviewing the record, the clinician should provide the following opinions: (a) Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's disability of the ears, to include hearing loss and recurrent chronic otitis media, had its onset in, or is otherwise related to, his active duty service? (b) Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's tinnitus had its onset in, or is otherwise related to, his active duty service In providing the above-referenced opinion, the examiner should accept the Veteran's report of ear infections experienced during service as established, regardless of the presence of a diagnosis or treatment for the condition. The examiner should also specifically address the evidence of chronic ear infections present in the record, as well as the June 2011 VA examination indicating that the Veteran's hearing loss and tinnitus were the result of his ongoing middle ear problems (ear infections and ear surgery). The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. The examiner must provide a comprehensive rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Specifically, the examiner must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ferguson, 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.