Citation Nr: 21041418 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-40 026 DATE: July 9, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include bipolar disorder, depression, anxiety, and adjustment disorder, is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus began during active service and has been ongoing ever since. 2. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of PTSD in accordance with the DSM-V criteria. 3. Resolving all doubt in his favor, the Board finds that the Veteran has current diagnoses of bipolar disorder, depression, anxiety, and adjustment disorder which have been related to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.04, 3.307, 3.309. 2. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304(f). 3. The criteria for entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include bipolar disorder, depression, anxiety, and adjustment disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2001 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a hearing before the undersigned Veterans Law Judge in May 2021. A transcript of the hearing is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for tinnitus The Veteran contends that service connection is warranted for tinnitus because it began during service due to noise exposure and has been ongoing ever since. In this case, it is undisputed that the Veteran has tinnitus. A current disability has therefore been demonstrated. The Veteran has stated that he was exposed to acoustic trauma while in service. Specifically, the Veteran has asserted that he was routinely exposed to hazardous noise while serving as a sonarman on a submarine. The Veteran described being exposed to noise such as the drone of engines, generators, and flow noises through pipes. The Veteran is competent to report noise exposure during service and the Board finds his statements regarding noise exposure to be credible and consistent with the circumstances of his service as reported in the service personnel records. Therefore, an in-service injury has been shown. As the record contains evidence of a current disability, and evidence of an in-service injury or disease, what remains to be established is whether there is a nexus between the diagnosed tinnitus and his in-service disease or injury. In this case, the record includes an August 2015 examination report wherein the examiner opined that the Veteran's tinnitus was less likely than not associated with his in-service noise exposure. The examiner stated that while the Veteran reported bilateral intermittent tinnitus, it is not associated with the presence of hearing loss. The examiner indicated that the Veteran did not have hearing loss based on puretone and speech audiometry. The Board finds the August 2015 examiner's opinion to be inadequate. It is unclear whether the examiner fully considered the Veteran's competent lay statements of record regarding the onset and chronicity of his tinnitus symptoms. As a result, the Board cannot find this medical opinion to carry significant probative weight. While the August 2015 examiner did provide a negative opinion concerning the contended causal relationship between tinnitus and active service, the Veteran has credibly stated that his tinnitus began in service due to acoustic trauma from working as a sonarman on a submarine. Based on his reports, a continuity of symptomatology of chronic tinnitus has been established sufficient to satisfy the remaining element of service connection. Importantly, no medical reason has been offered to reject the Veteran's credible lay reports concerning continuity of symptomatology. Tinnitus is one of few disabilities that is readily observable through one's own senses, and therefore the issue of nexus is not an inherently medical question. In sum, the Veteran credibly contends that he incurred tinnitus during active service due to noise exposure from working as a sonarman on a submarine. Additionally, the Board has found that the August 2015 negative nexus opinion addressing the contended etiological relationship between tinnitus and active service is not probative. Therefore, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for PTSD The Veteran is seeking entitlement to service connection for PTSD. To establish service connection for PTSD, a Veteran must satisfy three evidentiary requirements. First, there must be medical evidence diagnosis the condition in accordance with 38 C.F.R. § 4.145(a) (i.e., the criteria in the Diagnostic and Statistical Manual for Mental Disorders (DSM)). Then, there must be a link, established by medical evidence, between the current PTSD symptoms and an in-service stressor. Lastly, there must be credible supporting evidence that claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). VA treatment records from June 2011 note a negative screening for PTSD. VA treatment records from November 2014 note a diagnosis based on the DSM-5 criteria of adjustment disorder and panic disorder, but notably not PTSD. The Veteran had an examination for his claimed PTSD in August 2015. The examiner indicated that the Veteran did not have a diagnosis of PTSD that met the DSM-5 criteria. The examiner stated that the Veteran does not meet full DSM-IV-TR or DSM 5 criteria for the diagnosis of PTSD with his symptoms. However, the examiner noted that the Veteran did meet the criteria for a diagnosis of other specified trauma- and stressor-related disorder. VA treatment records from March 2018 note a history of flashbacks of events associated with the Veteran's childhood and that this is why he had a diagnosis of PTSD. In a September 2018 private medical assessment, Dr. J.P. noted that the Veteran met the criteria for unspecified trauma and stressor-related disorder as well as unspecified depressive disorder. Dr. J.P. further noted that the Veteran has past diagnoses of panic disorder, adjustment disorder, bipolar disorder, other specified trauma disorder and stress related disorder, PTSD, generalized anxiety disorder, and major depressive disorder. With respect to whether the Veteran has a present PTSD disability, the Board finds that the evidence does not reflect a diagnosis of PTSD at any time during the pendency of the appeal, that meets the regulatory criteria for establishing such diagnosis. Specifically, the August 2015 examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD and the Board finds the examiner's conclusions consistent with the evidence of record. The Board acknowledges that the Veteran has received mental health treatment and there is evidence that he has a past diagnosis of PTSD. However, there is no rationale regarding the Veteran's past diagnosis of PTSD, and it is not clear if this diagnosis met the DSM criteria, as is required for compensation benefits. Medical possibilities and unsupported medical opinions carry negligible probative weight. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Board has also considered the Veteran's statements regarding his claimed diagnosis of PTSD. However, the Board does not give such statements any probative weight based on the evidence on the record. The Veteran has not demonstrated he possesses the knowledge and medical expertise needed to competently assess his own psychiatric diagnosis. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not demonstrated the medical expertise required for this matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). Regarding the Veteran's claim of in-service stressors, regardless of whether an in-service stressor occurred, without evidence to show that the Veteran currently has PTSD, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board finds that the weight of the evidence is against a finding of service connection for PTSD. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. 3. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include bipolar disorder, depression, anxiety, and adjustment disorder The Veteran has also claimed entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include bipolar disorder, depression, anxiety, and adjustment disorder. As a preliminary matter, a service connection claim for an acquired psychiatric disability typically includes any diagnosis that is encompassed by the claimant's reported symptomatology; therefore, the Board has recharacterized the separate claims for bipolar disorder, depression, anxiety, and adjustment disorder into a single-issue statement. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Likewise, the requirements for establishing service connection for non-PTSD psychiatric diagnoses are more generic a current disability, an event or occurrence in service, and a nexus between the two. The Veteran had an examination for his claimed acquired psychiatric disorder in August 2015. The examiner indicated that the Veteran had diagnoses of bipolar disorder and other specified trauma- and stressor-related disorder. The examiner opined that it was less likely than not that the Veteran's acquired psychiatric disorder was incurred in or caused by his active service. The examiner stated that there was clear and unmistakable indication of a pre-military stressor to which the Veteran attributes his flashbacks of in recollections. The examiner noted that the Veteran reported childhood abuse for a four-year period from a boyfriend of his mother's. Additionally, the examiner noted that the Veteran reported the onset of his angry outbursts in childhood, and that the Veteran reported in general less severity of angry outbursts during military service. The examiner noted that the Veteran and his fiancé both reported recent decline in frequency and severity of angry outbursts, indicating that his condition was not permanently exacerbated by military service. The examiner also stated that bipolar disorder has a strong genetic basis. The examiner noted that the Veteran has one reported symptom that by content relates specifically to military trauma, and this is his reactivity to storms. The examiner stated that the Veteran's other trauma symptoms are related to childhood traumas, and that his reactivity ot storms, though anxiety provoking and noticeable to others, has not resulted in any social or occupational impairment. In a September 2018 private medical assessment, Dr. J.P. noted that the Veteran met the criteria for unspecified trauma and stressor-related disorder as well as unspecified depressive disorder. Dr. J.P. opined that it was at least as likely as not that the Veteran's acquired psychiatric disorder was a direct result of his active service. Dr. J.P. noted that there was a lack of any indication that the Veteran had a mental health disorder prior to joining the military. Dr. J.P. indicated that the evidence that the August 2015 examiner relied on, principally the Veteran's statements of childhood abuse, were not sufficient to clearly and unmistakably render a pre-service diagnosis or to conclude that those symptoms pre-existed service. Additionally, Dr. J.P. noted that the Veteran was in sound psychological health prior to service and that the Veteran stated that he went on to develop psychological difficulties during his time in service. At the May 2021 Board hearing, the Veteran testified that he had a history of pre-service childhood trauma. However, the Veteran testified that he did not have a diagnosis of a psychological disorder prior to service and that he was sound at entry into service. Additionally, the Veteran testified that he drove through a hurricane to get data. He testified that he could hear the storm through the hull and that he could "hear the boat getting battered." The Board finds that the probative evidence of record weighs in favor the claim of service connection for an acquired psychiatric disorder, to include bipolar disorder, depression, anxiety, and adjustment disorder. The Board finds the August 2015 opinion to carry less probative weight than the September 2018 assessment from Dr. J.P. It is unclear whether the August 2015 examiner fully considered the Veteran's competent lay statements of record regarding onset and chronicity of his psychiatric disorder symptoms. The September 2018 assessment from Dr. J.P. specifically noted that the August 2015 opinion relied on evidence that was insufficient to clearly and unmistakably render a pre-service diagnosis or conclude that the Veteran's symptoms existed prior to service. Further, the September 2018 private opinion from Dr. J.P. contrasts with the August 2015 examiner's opinion because Dr. J.P. provided a detailed rationale based on the evidence of record, including the relevant lay statements of record as well as an examination of the Veteran. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include bipolar disorder, depression, anxiety, and adjustment disorder is warranted, and the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran contends that he has a current bilateral hearing loss disability that is related to his in-service noise exposure. The Veteran had an examination for his claimed hearing loss disability in August 2015. Audiologic testing did not show a hearing loss disability for VA compensation purposes. 38 C.F.R. § 3.385. At the Veteran's May 2021 Board hearing, the Veteran testified that he was exposed to acoustic trauma during his active service. Specifically, the Veteran described being exposed to noise such as the drone of engines, generators, and flow noises through pipes. Additionally, the Veteran testified that his hearing loss symptoms had gotten worse. In light of the evidence of in-service noise exposure and worsening hearing loss, more contemporaneous medical findings are needed to fairly evaluate the Veteran's claim for service connection for bilateral hearing loss. Accordingly, the claim is remanded to obtain a VA examination to determine the nature and etiology of any hearing loss. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that he has a current right knee disability that is related to his active service. The Veteran had an examination for his claimed right knee disability in August 2015. The examiner opined that it was less likely than not that his current right knee condition was incurred in or caused by his active duty service. The examiner stated that the Veteran's service treatment records are silent for a right knee condition. The examiner further noted that the Veteran's service treatment records only note a left knee condition, and that there are no diagnoses in service of a right knee condition or treatment sought for a right knee condition. At the May 2021 Board hearing, the Veteran testified that he injured his right knee while carrying a load of paperwork. The Veteran stated that he stepped and felt a "pop" in his knee, which started to hurt and swell. The Veteran further testified that he sought treatment for his right knee injury and the treating physician told him that he appeared to have torn his lateral meniscal cartilage. The Veteran testified that he believes that the treating physician made a mistake and accidently made notations about his left knee when he actually injured his right. Additionally, the Veteran testified that he has had issues with his knee since the in-service injury. The Board finds the August 2015 examiner's opinion to be inadequate. It is not clear whether the August 2015 fully considered the Veteran's competent lay statements of record regarding his claimed in-service injury and his continuity of symptoms. Accordingly, remand is appropriate for an addendum medical opinion to ascertain the nature and etiology of the Veteran's claimed right knee disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an audiologic examination from a qualified VA medical professional to determine the nature and etiology of any current hearing loss disability. The examiner should review the claims folder, and then respond to the following: Is it at least as likely as not (i.e., probability of 50 percent or greater) that a hearing loss disability is related to the Veteran's claimed noise exposure during service? In answering this question, review and consider the lay assertions of record, to include his claimed exposure to acoustic trauma from serving as a sonarman on a submarine. See VBMS, document labeled Hearing Transcript, receipt date 05/11/2021. Also, note that the Veteran is competent to describe any symptoms he may have experienced since service discharge, particularly symptoms of hearing loss. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner should note that the lack of diagnosed hearing loss in service cannot serve as the sole basis for a negative finding. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Obtain an addendum medical opinion from a qualified VA medical professional to determine the nature and etiology of any current right knee disability. The examiner should review the claims folder, and then respond to the following: Is it at least as likely as not (i.e., probability of 50 percent or greater) that a right knee disability is related to the Veteran's active duty service, to include his claimed in-service right knee injury? In answering this question, review and consider the lay assertions of record, to include his claimed in-service right knee injury while carrying paperwork, his contention that his treating physician made a mistake and made notations about his left knee when his right knee was actually injured, and his claimed continuity of right knee symptoms since service. See VBMS, document labeled Hearing Transcript, receipt date 05/11/2021. Also, note that the Veteran is competent to describe any symptoms he may have experienced since service discharge. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner should note that the lack of diagnosed disability in service cannot serve as the sole basis for a negative finding. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.