Citation Nr: 21042491 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 19-21 138 DATE: July 13, 2021 ORDER New and material evidence has been presented, and the previously denied claims for service connection for bilateral hearing loss, tinnitus, an acquired psychiatric disorder (APD), and a right ankle condition are reopened. Service connection for tinnitus is granted. Service connection for an APD is denied. Service connection for a right ankle condition is denied. REMANDED Service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The September 2015 rating decision that denied service connection for bilateral hearing loss, tinnitus, an APD, and a right ankle condition is final because the Veteran did not initiate an appeal, or submit new and material evidence within a year of the denial. 2. The evidence received since the September 2015 rating decision includes evidence that relates to unestablished facts necessary to substantiate the claims on appeal, and is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 3. The weight of the evidence supports the conclusion that the onset of the Veteran's tinnitus was during his active duty service and has experienced the same symptoms since that time. 4. The weight of the evidence is against finding that the Veteran's claimed APD had its onset during his active duty service, within one-year post service, or is otherwise related to his active duty service. 5. The weight of the evidence is against finding that the Veteran's right ankle condition is due to his active duty service. CONCLUSIONS OF LAW 1. The September 2015 rating decision that denied service connection for bilateral hearing loss, tinnitus, an APD, and a right ankle condition is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the September 2015 rating decision that is sufficient to reopen the Veteran's claim for service connection for bilateral hearing loss, tinnitus, an APD, and a right ankle condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §1131; 38 C.F.R. § 3.303. 4. The criteria for service connection for an APD have not been met. 38 U.S.C. §1131; 38 C.F.R. § 3.303. 5. The criteria for service connection for a right ankle condition have not been met. 38 U.S.C. §1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1955 to March 1958. He and his daughter provided testimony before the undersigned Veterans Law Judge (VLJ) at an April 2021 Board hearing. A complete transcript is of record. As an initial matter, the Board notes that the Veteran's service treatment records (STRs) are not of record, and were destroyed in a fire related incident. See VA 21-3101 Request for Information dated January 3, 2012. In such cases, the Court has rejected the argument that there should be an "adverse presumption" against VA where service medical records have been lost or destroyed while in the Government's control, including records destroyed in the 1973 fire at the NPRC. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). However, in a case like this in which a veteran's service records are unavailable, there is a heightened obligation for VA to assist the claimant in the development of the claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This heightened obligation does not establish a heightened "benefit of the doubt" or lower the legal standard for proving a claim of service connection; rather, it increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Reopening Claims Once a claim has been denied by VA and becomes final, new and material evidence must be received to reopen the claim. A September 2015 rating decision denied the Veteran's service connection claim for bilateral hearing loss because he did not have hearing loss for VA purposes and was provided a negative nexus opinion. The service connection claim for tinnitus was denied because a negative nexus opinion was provided. The service connection claim for an APD and a right ankle condition were denied because there was no evidence of an in-service onset and there was no evidence that an APD or a right ankle condition were caused by service. Since the denial, the Veteran provided testimony at the April 2021 Board hearing regarding exposure to acoustic noise trauma, and in-service onset of tinnitus, traumatic in-service experiences, and an in-service right ankle injury. Accordingly, the claims are reopened. Service Connection Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Service connection for tinnitus is granted. The Veteran asserts that the onset of his tinnitus was during his active duty service and that he has experienced ringing in his ears ever since. The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran was afforded a VA examination for tinnitus in July 2015. He reported recurrent tinnitus and that the onset was in the early 1990s. The examiner provided a negative nexus opinion and explained that the Veteran reported that the ringing began in the early 1990s, more than 30 years after his separation from the military; and research does not support late onset noise-induced auditory damage or tinnitus. The Board notes that the Veteran's MOS was Heavy Weapons Infantryman. He testified that he was exposed to heavy weapons fire at the shooting range on an almost daily basis and was not issued any ear protection. He stated that he did not have any problems with his ears prior to joining the military. He further testified that after a long day of being out on the shooting range, he experienced ringing in his ears, but did not understand what tinnitus was at that point. He reported that the ringing in his ears would come and go and that it has been consistent since his active duty service. Here, the Board acknowledges the Veteran's report at the July 2015 VA examination, that the onset of his tinnitus was in the early 1990s. However, the Veteran has credibly testified that he did not understand what tinnitus was during his active duty service and that he experienced ringing in his ears after long days on the shooting range, firing heavy weaponry and that those symptoms have consistently come and gone since his time in service. The Board finds that the Veteran has been exposed to hazardous military noise and has credibly testified as to an in-service onset of tinnitus and a continuity of symptomatology ever since. The Board resolves reasonable doubt in his favor and finds that service connection for tinnitus is warranted. Accordingly, the criteria for service connection for tinnitus have been met and the Veteran's claim is granted. 2. Service connection for an APD is denied. The Veteran asserts that his APD is due to his active duty service. Specifically, he testified that while guarding an ammunition dump near the Korean DMZ, North Korean soldiers came across the DMZ and shot at the Veteran. He reported jumping back into a foxhole. A review of the Veteran's VA treatment records does not show that he has been diagnosed with posttraumatic stress disorder (PTSD) or any other psychiatric disorder, although he has been shown to have symptoms of anxiety and depression. His private treatment records show that he is being followed for anxiety; however, there is no indication that he has been formally diagnosed with a mental illness pursuant to the DSM. As previously mentioned, the Veteran's STRs are not available, as they have been destroyed. However, the Veteran testified that he experienced traumatic events during his active duty service. He testified that he was shot at by North Korean soldiers in 1956, about September or October. He also testified that two fellow soldiers were caught by the North Koreans and castrated. The Board notes that the Regional Office (RO) attempted to corroborate the stressful events. The Veteran was asked to provide information so that a records search could be performed. The Veteran responded that he was in the 24th HVY WPNS INF, as his unit of assignment. The RO determined that the information required to corroborate the stressful events was insufficient to send to the US Army and Joint Services Records Research Center (JSRRC), and/or insufficient to allow for meaningful research of NARA records. See VA Form 21-0961 dated June 29, 2015. The Board notes that the Veteran has not provided any further information. The Board also notes that the Korean War officially ended on January 31, 1955. The Veteran's claimed in-service stressor events, which involved aggressive actions by North Korean soldiers, allegedly took place after the war had ended. This makes the Veteran's cooperation with the information necessary to corroborate his stressor event important. The Board notes that the duty to assist is not a one-way street. Wood v. Derwinski,1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist a Veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake,21 Vet. App. 565 (2008). If the Veteran would like assistance in corroborating his stressor events, he must work with the RO in providing the information essential to research his claims. Here, the Veteran has consistently shown negative PTSD screens during the period on appeal. However, given that the Veteran's VA treatment records shows that he has shown anxiety and/or depression symptoms and his private treatment record show that he was being followed for anxiety, his service connection claim for PTSD has been recharacterized as service connection for an APD. The Board acknowledges that the Veteran has not been afforded a VA examination for his claimed APD. However, the Board also notes that only the Veteran's assertions have suggested the possibility of any relationship between his psychiatric symptoms and his active duty service, whereas none of his treating medical professionals have provided any indication that there is a medical nexus. Further, the Veteran testified that he cannot recall any doctors that related his anxiety to his military experiences. To the extent that the Veteran believes that his claimed APD is the result of his in-service stressor events, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also points out that there has been no indication from the Veteran, or through his medical records that indicates the onset of an APD was during his active duty service, or within a year of his separation from the military. Here, given that there has been no indication from a competent medical professional that relates the Veteran's anxiety to his active duty service, the Board finds that VA's duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board is sympathetic to the Veteran's assertions and belief that service connection for an APD is warranted based on the stressful events he experienced while stationed in Korea. However, the Veteran has not provided the information necessary to investigate and/or corroborate his reported in-service stressors. Further, the Veteran has not shown that he has been formally diagnosed with a psychiatric condition; and there is no suggestion in his medical records that his anxiety symptoms are due to, or related to his active duty service. As such, the Board finds that the criteria for service connection have not been met. Accordingly, service connection for an APD is denied. 3. Service connection for a right ankle condition is denied. The Veteran asserts that his current right ankle condition is due to his active duty service. Specifically, he asserts that while guarding an ammunition dump near the Korean DMZ, North Korean soldiers came across the DMZ and shot at him. He reported that he jumped back into a foxhole, fracturing his ankle in the process. The Veteran's STRs are unavailable, however, the Veteran provided testimony regarding an in-service injury. He testified that after he jumped in the foxhole and fractured his ankle, he saw a doctor and they wrapped his ankle up tightly, but did not put a cast on. He testified that he knew his ankle was fractured because of the way it swelled up. He also testified that he injured his right ankle again in the 1970s, he reported that he was just walking when his right ankle went out of place and had to be casted. A review of the Veteran's post-service treatment records shows conflicting information. In August 2012, the Veteran reported that his ankle was twisted while in Korea and was seen by a doctor. See VA Treatment Record dated August 24, 2012. A June 2019 treatment note indicated that he had an old right ankle fracture, with deformity. See VA Treatment Record dated June 20, 2019. A private treatment record shows that he has arthritis of the ankle. See Private Treatment Record dated January 3, 2020. Here, the Veteran's STRs are not available and there is no clear indication as to the extent of the Veteran's in-service right ankle injury. It is unclear whether the Veteran simply twisted his ankle, or whether he fractured it, as claimed. Although the post-service treatment records show that he had an old right ankle fracture, it is unclear whether they are referring to his active duty service, or the 1970s incident where his right ankle needed to be casted. The Board acknowledges that the Veteran has not been afforded a VA examination for his claimed right ankle condition. However, the Board also notes that only the Veteran's assertions have suggested the possibility of any relationship between his right ankle and his active duty service, whereas none of his treating medical professionals have provided any indication that there is a medical nexus. Further, the Veteran testified that none of his VA doctors have discussed whether his in-service ankle injury has led to the current ankle condition. To the extent that the Veteran believes that his right ankle condition is the result of his in-service injury, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has also considered whether service connection, by way of continuity of symptomatology, is warranted. However, the Veteran did not provide any meaningful testimony or any other statements that indicated that he has experienced right ankle symptoms since his active duty service. The first objective complaints of right ankle pain and treatment for such symptoms appears to be in 2012. See Private Treatment Record dated April 20, 2012. He also presented to VA in 2012, for right ankle pain. He also testified that he sustained an injury to his right ankle in the 1970s, when he was walking. He also reported that after the injury in the 1970s, he was treated at the NY VAMC, where they removed the cast and reset it and followed him until it healed. Here, there also appears that there was an intervening injury to the right ankle, in the 1970s, where there is more objective evidence of a right ankle fracture. The only indication that the Veteran had an in-service right ankle fracture, is from the Veteran. He testified that he knows that he had an in-service ankle fracture because of the way it swelled up. However, the Board notes that the Veteran is not competent to diagnose an ankle fracture by lay observation alone. The Board acknowledges that there is no objective evidence to indicate that the Veteran's right ankle was fractured in the 1970s, but the Veteran has reported that his right ankle was put in a cast and had his ankle reset after the cast was removed. Such a report indicates that there was an ankle fracture in the 1970s, whereas the only treatment reported after the in-service ankle injury was that his ankle was wrapped tightly. Further, the Board once again notes that the Veteran's reported right ankle injury, reportedly sustained as a result of being shot at by North Korean soldiers, took place about a year and a half after the Korean War had ended. Given that there has been no indication from a competent medical professional that even suggests that the Veteran's current right ankle condition to his active duty service, the Board finds that VA's duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board is sympathetic to the Veteran's assertions and belief that service connection for a right ankle condition is warranted based on the in-service event where he dove into a foxhole and broke his ankle. However, the Veteran has not provided any competent medical opinions to even suggest the possibility of a medical nexus between the current right ankle condition and his active duty service; and the Board has not uncovered even a suggestion of such a connection in his post-service treatment records. Further, the Veteran testified that he is not aware of any treating physicians finding a connection between his ankle condition and his active duty service. As such, the Board finds that the criteria for service connection have not been met. Accordingly, service connection for a right ankle condition is denied. REASONS FOR REMAND Service connection for bilateral hearing loss is remanded. The Veteran asserts that his bilateral hearing loss is due to his exposure to acoustic noise trauma during his active duty service. The Veteran was afforded a VA examination for hearing loss in July 2015. An audiological examination showed that he did not have hearing loss for VA purposes at that time. The examiner also provided a negative nexus opinion and explained that the onset of hearing decrease was in the early 1980s, more than 20 years after his separation from the military. The examiner cited to the Institute of Medicine (IOM), where in 2006, they stated that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The Veteran testified that his hearing has worsened since the 2015 VA examination and during the Board hearing, his representative referred to a National Institute of Health internet article that reported that noise-induced hearing loss can be immediate or it can take a long time to be noticeable. Further, the Veteran's representative's June 2021 Appellate Brief also cited to numerous medical articles suggesting delayed effects of noise on the ear. Here, given that the Veteran was exposed to hazardous military noise, has testified as to worsening hearing, and has provided conflicting medical evidence, the Board finds that remand is necessary to afford the Veteran a new audiological examination and an etiology opinion that addresses the conflicting medical evidence. Accordingly, service connection for bilateral hearing loss is remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination. The examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that any hearing loss was caused by or incurred during the Veteran's military service, to include any exposure to acoustic trauma. Why or why not? The examiner should discuss the Veteran's exposure to heavy weapons fire and his testimony that after his separation from the military, he started to talk loudly because he was hard of hearing. The examiner should also discuss the article referenced at the April 2021 Board hearing. See https://www.nidcd.nih.gov/health/noise-induced-hearing-loss The examiner's attention is also directed to the Appellate Brief received by VA on June 9, 2021, which cites to numerous articles suggesting the delayed effects of noise on the ear. The examiner should discuss any conflicting medical evidence in providing their medical opinion. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.