Citation Nr: 22017520 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-16 643 DATE: March 25, 2022 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) for purposes of recharacterizing the currently service-connected mental health disability (other specified trauma-related disorder, previously evaluated as insomnia disorder) is granted. FINDINGS OF FACT 1. The Veteran's tinnitus had its onset in service. 2. In a December 2015 rating decision, the agency of original jurisdiction (AOJ) granted service connection for a mental health disorder diagnosed as insomnia disorder (claimed as a sleep disorder). The Veteran filed a new claim for service connection for PTSD later that same month. 3. In the September 2016 rating decision on appeal, the AOJ recharacterized and reclassified the disability as other specified trauma-related disorder, which is a subthreshold PTSD diagnosis. 4. There is a reasonable doubt as to whether the proper diagnosis for the service-related mental health disorder is PTSD or other specified trauma-related disorder, and the other criteria for PTSD have been established. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for PTSD for purposes of recharacterizing the currently service-connected mental health disability (other specified trauma-related disorder) have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2006 to October 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA). A hearing was held before the undersigned Veterans Law Judge in September 2021. A transcript of the hearing is of record. The Veterans Law Judge held the record open for a 90-day period for the submission of additional evidence. Thereafter, the Veteran submitted evidence for which there is an automatic waiver of initial AOJ review. Initially, the Board finds that the Veteran has continuously pursued the tinnitus claim since his April 2015 original compensation claim, making it an initial claim for the disorder, rather than a request to reopen requiring new and material evidence. See December 2015 rating decision (adjudication of original compensation claim); December 2015 request for reconsideration and September 2016 rating decision (AOJ essentially reconsidered issue). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As tinnitus is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) and Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus, at a minimum where there is evidence of acoustic trauma, as an organic disease of the nervous system). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). Tinnitus In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is warranted for tinnitus. The Veteran has contended that he developed tinnitus as a result of noise exposure from his in-service duties that started when a shoulder-launched multipurpose assault weapon (SMAW) rocket went off about 30 yards away from him during stateside training exercises and has been continuous since that time. He has reported that the initial incident was in 2007, but he was unable to remember specific dates, and that he had further in-service noise exposure from machine guns, explosions, helicopters, and grenades during his subsequent deployments. In addition, the Veteran testified that he did not report the problem on post-deployment health assessments because the military culture encouraged not reporting minor injuries like ringing in the ears. See, e.g., September 2021 Bd. Hrg. Tr. and August 2015 VA examination report; see also DD 214 (military occupational specialty of rifleman). The AOJ has acknowledged in-service noise exposure. The post-service evidence shows that the Veteran has a current diagnosis of tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that tinnitus is a type of disorder capable of lay observation and description); August 2015 VA examination report. The August 2015 VA examiner determined that Veteran's tinnitus was less likely than not caused by or a result of his military noise exposure, noting that he had hearing within normal limits, no change in puretone sensitivity over time, a vague report of onset, denial of tinnitus on the post-deployment health assessments with no complaints of tinnitus in service, a history of civilian noise exposure, and a post-service delay of five years in filing the claim. Nevertheless, there is no reason to doubt the Veteran's statements as to the nature of the onset of his tinnitus other than the lack of contemporaneous medical evidence. He clarified the reason for failing to report having tinnitus on the post-deployment health assessments during the hearing, and he claimed tinnitus on the April 2015 original compensation claim (i.e., the first time he sought VA benefits). Moreover, a March 2011 VA treatment record for an Operation Enduring Freedom/Operation Iraqi Freedom (OEF/OIF) initial assessment shows that the Veteran described his two deployments and reported having tinnitus that he related to loud explosions, gunfire, and confined spaces. This appointment was only several months after his separation from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Based on the foregoing, the Board concludes that the Veteran's tinnitus had its onset in service, and as such, service connection is warranted for the disorder. PTSD In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is warranted for PTSD for purposes of recharacterizing the currently service-connected mental health disability (other specified trauma-related disorder, previously evaluated as insomnia disorder). The Veteran has contended that his service-connected mental health disability should be classified as PTSD rather than other specified trauma-related disorder. He is not seeking a separate evaluation for PTSD. Rather, he believes that he developed a mental health disorder as a result of his military service while deployed that should be characterized as PTSD, with insomnia as a symptom of that disorder. See, e.g., September 2021 Bd. Hrg. Tr.; July 2017 notice of disagreement. In a December 2015 rating decision, the AOJ granted service connection for a mental health disorder diagnosed as insomnia disorder (claimed as a sleep disorder). The AOJ based the determination on an August 2015 VA examination report in which the examiner determined that the Veteran had insomnia disorder; however, it does not appear that the examiner considered whether the Veteran had PTSD or a subthreshold diagnosis based on the corresponding July 2015 examination request and examination report form used. The Veteran filed a new claim for service connection for PTSD in December 2015. In the September 2016 rating decision on appeal, the AOJ recharacterized and reclassified the disability as other specified trauma-related disorder. The AOJ based the determination on a February 2016 VA examination report in which the examiner determined that the Veteran's reported stressors were related to fear of hostile military activity and were adequate to support a PTSD diagnosis, but that he did not meet the full criteria required for a PTSD diagnosis based on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders DSM-5 (Fifth Edition). The AOJ also separately verified one of the stressors related to death of a section leader. See December 2015 written stressor statement and June 2016 email correspondence. The examiner determined that the Veteran had a diagnosis of other specified trauma-related disorder that was related to the in-service stressor events and that he continued to have a persistent sleep disturbance that was one of the symptoms of that diagnosis (rather than a separate diagnosis). In reclassifying the disability, the AOJ discontinued the insomnia disorder evaluation under Diagnostic Codes 9499-9410 and replaced it with the new diagnosis under Diagnostic Codes 9499-9411 effective from the date of the 2016 VA examination. Following the hearing, the Veteran underwent a mental health evaluation in October 2021 in which the private licensed clinical professional counselor diagnosed him with PTSD based on deployment-related events, including those verified by the AOJ. In addition, while not dispositive, the historical VA treatment records show that the Veteran reported the stressor related to the section leader's death during the March 2011 OEF/OIF initial assessment, which was considered as related to possible PTSD issues. During a February 2014 VA behavioral medicine initial assessment, the treatment provider noted that test results were suggestive of moderate symptoms of PTSD, even though the Veteran did not meet the full criteria required for a diagnosis of PTSD or subclinical PTSD at that time. The more recent VA treatment records show that he was initially treated for an insomnia disorder. He was later assessed with trauma-related disorder after a diagnostic impression to rule that diagnosis out after test results reflected such symptomatology. See, e.g., VA treatment records from May 2016, July 2017, and August 2017. The August 2017 VA treatment record shows that he did contact a Vet Center for mental health treatment related to the trauma-related symptoms around that time, but he testified that he did not hear back from the facility after the intake interview. The Board finds that a favorable decision on this claim can be made based on the current record. Based on the foregoing, there is a reasonable doubt as to whether the proper diagnosis for the service-related mental health disorder is PTSD or other specified trauma-related disorder, and the other criteria for PTSD have been established. The other specified trauma-related disorder was provided in the context of the Veteran not meeting the full criteria required for a PTSD diagnosis (i.e., as a subthreshold PTSD diagnosis), but the 2016 VA examiner did find that there was a link between the in-service stressors and the current symptoms. The AOJ also conceded the in-service stressors in granting service connection, and the Veteran's claim has been based on his desire to have his diagnosis recognized as PTSD. Resolving any reasonable doubt in favor of the Veteran, the claim is granted. In reaching this decision, the Board notes that the Veteran's symptomatology is the same for both diagnoses (as opposed to two separately diagnosable disorders with distinct symptoms) and that the outcome is specific to the facts of this case. The single evaluation assigned for rating purposes contemplating this symptomatology, including sleep disturbance, would be assigned under the same rating criteria, as discussed at the hearing. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Postek, 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.