Citation Nr: 21042335 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-50 877 DATE: July 12, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, tinnitus had its onset in or is otherwise etiologically related to her active duty service. 2. Resolving all reasonable doubt in the Veteran's favor, the Veteran's back disability had its onset in or is otherwise etiologically related to her active duty service. 3. Resolving all reasonable doubt in the Veteran's favor, the Veteran's acquired psychiatric disability had its onset in or is otherwise etiologically related to her active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from August 1979 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for bilateral hearing loss, tinnitus, a back disability, and depression. The Veteran timely appealed the denials. The Board has expanded the Veteran's claim regarding depression to include any diagnosed acquired psychiatric disability in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). In December 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A copy of the hearing transcript is of record. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. In addition, certain diseases, such as sensorineural hearing loss, tinnitus, and degenerative joint disease (arthritis) are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113;38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.§ 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for tinnitus is granted. The Veteran maintains entitlement to service connection for tinnitus. She avers that she was exposed to hazardous noise during her active duty service that led to the development of tinnitus. The Board finds that the preponderance of the evidence weighs in favor of a grant of service connection for tinnitus. First, the Board finds that there is competent, credible evidence of a current disability. Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. As the Veteran has competently, credibly, and consistently reported experiencing tinnitus since service, the first element of service connection is met. Second, the Board finds that there is competent, credible evidence of an in-service event, disease, or injury. The Veteran has reported in-service noise exposure. The Veteran's military personnel records show that she served as a missile launch officer. Accordingly, the Board finds that her reports regarding in-service noise exposure and tinnitus are consistent with the circumstances of her service. 38 U.S.C. § 1154 (a); see Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012); Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Thus, the second element of service connection is met. At issue is whether there is an etiological relationship between the Veteran's tinnitus and her in-service noise exposure. The Board notes that there is evidence both for and against the Veteran's claim. The Veteran was provided a VA examination in January 2014. The examiner stated that she was unable to proffer a nexus opinion at that time without resorting to mere speculation, as the Veteran's claims file had not been made available to her. She concluded that service connection could not be made. As this opinion is speculative and is not based on the Veteran's reported or documented medical history, the Board finds that it is of low probative value. In February 2021, a private audiologist who reviewed the Veteran's medical records and military service records and had provided an audiological examination the previous month, rendered an etiological opinion. She concluded that the Veteran's tinnitus was due to the high probability of exposure to hazardous noise during her time in service as a missile launch officer, observing that there was a notable lack of post military noise exposure, and a long history of tinnitus dating back to service. The Board finds that this positive opinion is of high probative value, as it is based on a thorough review of the record and due consideration of the Veteran's lay testimony. The third, and final, element of service connection is met. As the Veteran has a current diagnosis of tinnitus, there is competent, credible evidence of in-service noise exposure, and there is a probative, positive etiological opinion of record, the Board finds that all elements of entitlement to service connection for tinnitus have been met. Service connection for tinnitus is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a back disability is granted. The Veteran maintains entitlement to service connection for a back disability. She avers that her current back disability developed following an in-service motor vehicle accident (MVA). The Board finds that the preponderance of the evidence weighs in favor of a grant of service connection for a back disability. First, there is evidence of a current disability. The Veteran has been variously diagnosed with lumbosacral strain, upper thoracic spine strain, and degenerative joint disease of the cervical, thoracic, and lower lumbar spine. Second, there is evidence of an in-service event, disease, or injury, as the Veteran's service treatment records document her involvement in an MVA in November 1982 and subsequent complaints of pain and muscle spasms in the upper back. At issue is whether there is an etiological relationship between the Veteran's current back disability and the in-service MVA. The Board notes that there is evidence both for and against the Veteran's claim. The Veteran was provided a VA examination in January 2014. Following a review of the claims file and the provision of a clinical evaluation, the VA examiner determined that it was less likely as not that the one-time strain noted in November 1982 caused the Veteran's present day chronic issues. She found that there was insufficient evidence provided that there was a chronic back condition while in service, noting that the Veteran remained in service until 1984 and the only other complaint of back pain during that time was attributed to pregnancy. The VA examiner noted that there was no mention of back pain again until 1997 and that the Veteran had an intervening back injury at work in 2005. She concluded these were independent episodes of muscle strain without evidence of a chronic condition related to military service. In August 2019, the Veteran underwent a private back evaluation. Following that evaluation and a review of the Veteran's records, the private physician determined that the Veteran's neck and back problems began in the November 1982 in-service MVA. He stated that from his experience as a family physician, trauma from an MVA or any orthopedic injury could lead to degenerative arthritic changes over time at the site of injury, and could require significant treatment over time, up to and including surgery. The private physician found that it was more likely than not that the Veteran's current symptoms and subsequent degenerative arthritic changes in the cervical and lumbar spine over time relate back to her in-service accident. The Board affords equal probative value to the opinions of record as they are both based on a thorough review of the record and each are supported by detailed rationale grounded in medical principles and expertise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the Board finds that the evidence is at least in equipoise on the third element of service connection, nexus. In that regard, the law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail on the issue. Service connection for a back disability is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, is granted. The Veteran maintains entitlement to service connection for an acquired psychiatric disability. She avers that she developed this disability because of harassment she endured during her active duty service. The Board finds that the preponderance of the evidence weighs in favor of a grant of service connection for an acquired psychiatric disability. First, there is evidence of a current disability. The Veteran has been variously diagnosed with major depressive disorder, recurrent moderate, and PTSD, chronic, by VA mental health professionals, as is documented in her VA treatment records. Regarding the second element of service connection, an in-service event, disease, or injury, the Veteran has competently and credibly described receiving several harassing and obscene telephone calls during her active duty service. She indicated that she reported such instances to the military's Office of Special Investigations (OSI) and to the local police department. Through no fault of the Veteran's, VA was unable to obtain the OSI records or local police department records, as they routinely (every 10 years) destroy such information. The Board also notes that the Veteran's service treatment records are silent for complaint, treatment, or diagnosis of a mental health disability. However, the Veteran explained that she did not visit a doctor for fear of losing her PRP (Personnel Reliability Program) involvement related to her ability to perform her duties as a missile launch officer, as well as to avoid the stigma associated with mental health treatment. The Board finds these explanations reasonable. It also notes that, in support of her claim, the Veteran submitted lay statements from friends and family members which detail both her complaints of harassing phone calls during service as well as observable changes in her behavior during that time. These statements bolster the Veteran's assertion regarding the in-service incident, as well as her descriptions of subsequent episodes of depression, anxiety, and fear that have persisted to the present day. Resolving all reasonable doubt on this point in the Veteran's favor, the Board finds that there was an in-service event, thereby satisfying the second element of service connection. Finally, the Board finds that there is a nexus between the Veteran's current acquired psychiatric disability and the aforementioned in-service event. A March 2019 VA mental health provider reviewed the Veteran's medical records and found that her diagnosed major depressive disorder and PTSD were a direct result of the military sexual trauma (harassing and obscene telephone calls) she experienced while serving in the U.S. Air Force. She further found that the Veteran's condition was exacerbated by continued denial from authority and lack of documentation of the incident from the military's OSI and the local police department. The Board finds this opinion probative as it is based on a review of the Veteran's medical history and is proffered by a mental health professional with the requisite knowledge and expertise. As the Veteran has a current diagnosis of an acquired psychiatric disability, there is competent, credible evidence of an in-service event, and there is a probative, positive etiological opinion of record, the Board finds that all elements of entitlement to service connection for an acquired psychiatric disability have been met. Service connection for an acquired psychiatric disability is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran maintains entitlement to service connection for bilateral hearing loss. The Board notes that the Veteran did not meet the requirements for bilateral hearing loss as enumerated in 38 C.F.R. § 3.385 at the VA examination she attended in January 2014. She submitted the results of a January 2021 private audiological examination. The private audiogram provided audiometric results in the form of a graph, without interpretations as to the pure tone thresholds found at the relevant frequencies. Additionally, it is unclear whether the audiological examination used Maryland CNC for the speech discrimination test results. The Board finds that the RO should obtain an interpretation of the January 2021 audiogram results from a certified audiologist for clarification. See Kelly v. Brown, 7 Vet. App. 471 (1995) (the Board should not discount audiograms just because they are in graph form and can remand uninterpreted audiograms for interpretation if the results are subject to multiple interpretations). The matter is REMANDED for the following action: Obtain an interpretation of the January 2021 private audiogram results from a certified audiologist. Associate the interpreted report with the claims file. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.