Citation Nr: 22012245 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 18-15 823 DATE: March 3, 2022 ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDING OF FACT Resolving doubt in the Veteran's favor, the evidence of record shows that her PTSD was related to her active service. CONCLUSION OF LAW The criteria for service connection for PTSD were met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Navy from June 1983 to May 1987. This matter is on appeal to the Board of Veterans' Appeals (the Board) from September 2017 and November 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at Decision Review Officer hearings held in October 2017 and April 2018. In October 2021, the Veteran testified in a hearing before the undersigned Veterans Law Judge. Transcripts of these hearings are in the evidence of record. 1. Entitlement to service connection for PTSD is granted. Applicable Law and Regulations Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of 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. 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2019). See also Cohen v. Brown, 10 Vet. App. 128 (1997). If a Veteran's PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor events. 38 C.F.R. § 3.304(f)(5). Within the legal framework for evaluating claims of service connection for PTSD, the sufficiency of a stressor is a medical determination, while the occurrence of the stressor is a legal determination. Sizemore v. Principi, 18 Vet. App. 264 (2004). Due consideration must be given to all pertinent medical and lay evidence in evaluating a claim for service connection for any disability. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Lay statements can be considered competent to establish a diagnosis when the layperson is competent to identify the medical condition, reports a contemporaneous medical diagnosis, or describes symptoms which support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once evidence is deemed competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465 (1994). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Effective August 4, 2014, the VA amended the portion of the Rating Schedule dealing with mental disorders to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). 38 C.F.R. § 4.125. The DSM-IV is applicable to claims that were initially certified for appeal to the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit prior to August 4, 2014. The Board notes that the present claim was certified to the Board in December 2018. Accordingly, this claim was pending before the Agency of Original Jurisdiction (AOJ) after August 4, 2014, and DSM-V applies to this claim. 79 Fed. Reg. 45094 (Aug. 4, 2014). Factual Background and Analysis The Veteran contends her PTSD is due to her active service. In March 2018, a disability benefits questionnaire (DBQ) provided by a private psychologist diagnosed PTSD under the DSM-V criteria. As such the first Shedden element is met. A September 1982 service treatment note indicated a normal clinical evaluation except for scars. The Veteran's May 1987 discharge examination also noted a normal clinical evaluation. In a February 2012 statement in support of her claim, the Veteran reported she was assigned to the supply division from September 1983 to May 1987. In August 1984, she worked in base officer quarters (BOQ) which was a transient barracks for visitors at San Diego, Point Loma. She was working in the back room filing when the telephone rang. She answered on the third ring but there was no response on the other end of the line. An intoxicated officer, later identified to her as an O-6, arrived at the desk. He grabbed her by the collar and threw her into a chair. He berated her for not answering the phone promptly. She reported feeling threatened and not knowing what he was going to do next. After he finished the tirade, he left. She reported the incident to her non-commissioned officer in command and he told her to disregard the intoxicated officer. This officer stayed at the BOQ frequently and it was a known fact that he was often intoxicated. This incident triggered flashbacks to her rape prior to service. She sought counseling at the time, but the smell of alcohol still triggers her. In October 1985, she left work at 11PM and went back to the barracks. Her room was located on the first floor. She began undressing, noticed the window was open, and a man was watching her through the window. She went to the officer of the day (OOD) to report the incident. A search party was organized, and the man was caught. The Veteran reported feeling violated by the intrusion into her privacy and after talking with her superiors, had her work schedule changed to daylight hours. She became fearful of being in the room at night and was hypervigilant. This incident also triggered memories of her prior sexual assault. During her October 2021 hearing, she testified the offending man was turned over to the Turkish Navy. They were on based buying a submarine and receiving the training to operate it. She testified to her belief that nothing was done to reprimand this man and she was now traumatized about going out at night. Finally, in April 1987, she was asked to train some of the higher-ranking enlisted men in her job. She was an E-3, and the higher-ranking enlisted men did not like being trained by an E-3. One E-6 in the training harassed her daily with degrading comments. He went on a tirade calling her a "fucking bitch" and a "nobody." She felt threatened by this incident and reported it to her supervisor. Ultimately, she was angry with her supervisor for putting her in a situation where a hostile work environment was created. In October 2021, she testified to her belief that nothing was done to reprimand this man. She reported not reenlisting because of the hostile work environment. The Veteran is competent to provide testimony concerning factual matters of which she has first-hand knowledge and experiences through her senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). In June 2012, a formal finding was made regarding the unavailability of service records from Point Loma San Diego sick bay. In September 2017, A.E., the Veteran' daughter, opined her mother was overprotective. When she went out, she had to check in with her mother when she arrived and left her destination, provide contact information for all her friends, and was encouraged to not drive with the windows down especially at night. A.E. reported that her mother had trust issues with anyone outside the family. The Veteran would go through periods of depression where she did not care of herself, was very suspicious, and even forgot names. A.E. opined the Veteran had PTSD due the trauma she experienced while serving in the Navy. In September 2017, D.C., the Veteran's brother, opined his sister was noticeably jumpy and suspicious after she separated from the Navy. She was afraid to do many of the things that she used to by herself. At night she would lock herself in her home with the blinds and curtains drawn. She sometimes did this during the day as well. When she went out to eat, she needed to be seated so that she could see the front door. D.C. also reported that he witnessed his sister start to let herself go. He had to tell her that she needed to bathe and change her clothes. Even after she got married these things did not get better. D.C. opined this damage occurred in the Navy when a man from the Turkish Navy was watching her in her room. He reported trying to talk to her about what happened but that she did not remember. It was like her mind was trying to block out that part of her life. In April 2018, D.D., the Veteran's friend, reported they met as teenagers. After the Veteran separated from service and returned to Nebraska it took time for them to reconnect at the same level as before. The Veteran was not the same person when she came back. D.D. noticed that the Veteran stopped caring about her appearance, which was out of character. Crowds made her nervous and she would never sit with her back to the door of a restaurant. D.D. moved away but they sometimes talk on the phone. Some conversations are good, and some have a lot of silences. D.D. opined to hearing depression in the Veteran's voice. The statements of A.E., D.C. and D.D. were found probative. They are competent to report their observations and conversations with the Veteran. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Giving the Veteran every benefit of the doubt, the Board finds she sustained an in-service injury. As such, the second Shedden element is met. Therefore, the question to be decided in the present appeal is whether the current PTSD was caused by or the result of the Veteran's active service. The weight of the evidence supports finding that the Veteran's PTSD is related to her active service. In March 2018, I.S. (PhD), provided a private DBQ. The Veteran was diagnosed PTSD under the DSM-V. She had a history of increased withdrawal and avoidance of social relationships and interactions due to suspiciousness and interpersonal distrust. She maintained few, if any, friendly relationships. The Veteran had the following three stressor events: sexual violation via voyeurism by a soldier of a foreign country working with US forces, threat of physical harm by a superior officer, and sexual harassment by a foreign military soldier. Doctor I.S. opined the Veteran's onset of PTSD symptoms occurred following her military experience while stationed in San Diego, CA. Her symptoms more likely than not appear to be the direct result of her experiences during her military service and significantly impact her ability to maintain and engage in meaningful and social interactions. Doctor I.S. indicated conducting a 90-minute diagnostic interview, review of written documentation and biopsychosocial history, and a mental status examination. The opinion of Doctor I.S. was accorded positive probative value as the medical provider was sufficiently informed of the relevant facts including the Veteran's lay statements so as to be able to form an appropriate medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Having considered the credible lay reports and weighing the medical opinions of record, the Board resolves reasonable doubt in the Veteran's favor and finds service connection for her PTSD is warranted. REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss is remanded. The Veteran contends her left ear hearing loss is due to her active service. In August 2017, the Veteran reported exposure to acoustic trauma in boot camp due to the firing of firearms and drill instructors screaming in her ears. After boot camp, her family and friends noticed that they had to repeat words because she could not hear what they were saying. She reported sometimes not even knowing people were talking to her. She was stationed at Point Loma, a submarine base, and was around loud diesel engines. She also reported being on the special forces team where she learned to shoot every type of weapon available. During training ear protection was only sometimes available. An October 2017 rating decision granted service connection for her right ear hearing loss. The RO conceded acoustic trauma in service because her required duties exposed her to noise from weapons. In a July 2017 private audiological evaluation, the Veteran was diagnosed with mild sensorineural flat hearing loss in the left ear. However, her audiogram revealed the following: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT N/A N/A N/A N/A N/A N/A LEFT 25 20 N/A 35 N/A 100% The July 2017 private audiogram showed that the Veteran's hearing did not meet the criteria for a current hearing loss disability as defined by 38 C.F.R. § 3.385. A September 2017 VA examination provided a negative nexus opinion for her hearing loss; however, audiological testing does not appear to have been conducted at this time. During her October 2021 hearing, she testified to worsening hearing loss since her last VA examination. Although a new VA examination is not warranted based merely upon the passage of time (see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)), the Court has held that where a Veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Given the fact that the last examination was over four years ago, and the Veteran recently testified that she had worsening hearing loss since her last VA examination, she should be afforded a new VA examination. The matters are REMANDED for the following action: 1. Obtain and associate any outstanding VA and non-VA treatment records with the claims file. 2. Thereafter, schedule the Veteran for a VA audiological examination. Audiometric testing should be completed and any bilateral hearing loss disability under 38 C.F.R. § 3.385 should be noted. A Maryland CNC speech recognition test must be completed. Then, the examiner is asked to opine on the following: If it is at least as likely as not that her hearing loss had its onset in service or was otherwise etiologically related to any event or circumstance of her service. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and her representative should be furnished with a supplemental statement of the case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.