Citation Nr: 21040451 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-28 459 DATE: July 3, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, her right ear disability is at least as likely as not related to military service. 2. The competent evidence of record shows that the Veteran's acquired psychiatric disorder is related to military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to right ear hearing loss have been met. 38 U.S.C. § 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2020). 2. The criteria for entitlement to service connection for an acquired physiatric disorder have been met. 38 U.S.C. § 1110, 1131 5107 (2012); 38 C.F.R. §§ 3.303, 3.304(f)(5) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 to March 1978 These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In January 2015, the Veteran submitted a VA Form 10182 notice of disagreement (NOD) and in April 2018, the RO issued a statement of the case (SOC). In May 2018, the Veteran timely filed a substantive appeal and requested a Board hearing. In November 2020, the Veteran participated in a virtual hearing with the undersigned Veterans Law Judge (VJL). A transcript of that proceeding has been associated with the claims file. Claims for service connection for psychiatric disorders may encompass claims for service connection for all diagnosed psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Here, the Veteran has asserted a claim for a mental condition due to military sexual trauma (MST). The record shows that the Veteran has been diagnosed with, at minimum, unspecified trauma related disorder and autism spectrum disorder (previously schizoid disorder). Accordingly, the Board has recharacterized the issue on appeal as a claim of entitlement to service connection for an acquired psychiatric disorder. SERVICE CONNECTION VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the claimant's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2019). 1. Entitlement to service connection for right ear hearing loss is granted. The Veteran is seeking entitlement to service connection for right ear hearing loss. Specifically, she contends that her hearing loss was worse when she got out of the military. See May 2018 VA Form 9. Following a review of the record, the Board finds that, affording the Veteran the benefit of doubt, her right ear hearing loss is related to service. Regarding the presence of a current disability, the Veteran has demonstrated a right ear hearing loss disability for VA purposes. See 38 C.F.R. § 3.385; see also December 2014 VA Examination. Concerning an in-service event or injury, the Veteran has credibly contended, for example during her December 2014 VA examination, that she was exposed to loud noises while working on the flight line as part of her military occupational specialty (MOS). See VA Form DD 214. Thus, the evidence shows that the Veteran has a current right ear hearing loss disability and that she experienced in service hazardous noise exposure. The remaining question is therefore whether the Veteran's right ear hearing loss disability is related to service. Here, the Board finds that the evidence is in relative equipoise as to whether that the Veteran's right ear hearing loss is related to her service. Specifically, the Veteran competently, consistently, and credibly contends that her hearing loss was worse when she got out of the military. See May 2018 VA Form 9. Following service, she worked multiple jobs and was only exposed to loud noises when working as a dishwasher. Contrastingly, in a December 2014 VA examination, an examiner found that there were no significant threshold shifts during service and accordingly, the Veteran's right ear hearing loss was less likely than not related to her service. Reviewing the evidence of record, the Board notes that the Veteran's statement are competent, and consistent. See Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, these statements are credible and afforded probative value. Comparatively, the December 2014 VA opinion is inadequate for adjudicative purposes. Specifically, the examiner relied only on threshold shifts and failed to consider the Veteran's competent lay assertions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Relying on threshold shifts is an insufficient basis for a negative opinion. The Board thus places relatively little probative weight on this opinion. Based on the foregoing, the evidence of record is at least in relative equipoise as to whether the Veteran's right ear hearing loss is related to service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the third element of service connection, that of a positive nexus between the Veteran's right ear hearing loss and service has been met. Gilbert, supra. As such, the three elements necessary for service connection have been met and the claim for service connection for right ear hearing loss is granted. 2. Entitlement to service connection for an acquired psychiatric disorder is granted. The Veteran is seeking service connection for an acquired psychiatric disorder. Specifically, she contends that her current disability is related to her inservice MST. Following, the MST, her work performance degraded, and she received psychiatric counselling during service. See November 2020 Board Hearing Tr.; November 2014 Correspondence. Following a review of the record, the Board finds that service connection for an acquired psychiatric disorder is warranted. Here, in a September 2017 VA opinion, the Veteran was found to have a current acquired psychiatric disability. Concerning an in-service event or injury, the September 2017 VA examiner also found that the Veteran has the markers of having experienced a MST. The Veteran also received counseling during service due to degrading work performance. See, e.g., March 1978 Service Treatment Record (STR); February 1978 STR; December 1977 STR. Finally, a December 2014 VA examiner and September 2017 VA examiner both determined that it is at least as likely as not that the Veteran's current acquired psychiatric disability is related to service. There are no opinions of record to the contrary. Based on the foregoing, the competent evidence of record shows that the three elements necessary for service connection have been met and that the Veteran's current acquired psychiatric disorder is related to service. As such, the claim for service connection for an acquired psychiatric disorder is granted. REASONS FOR REMAND 1. Entitlement to a TDIU due to service-connected disabilities is remanded. The grants herein of entitlement to service connection for right ear hearing loss and for an acquired psychiatric disorder warrants RO adjudication of entitlement to a TDIU in the first instance so as to consider all of the Veteran's service-connected disabilities. The matters are REMANDED for the following action: (Continued on the next page) After undertaking any additional development deemed necessary, the AOJ must readjudicate the claim on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.