Citation Nr: 22018401 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 19-27 764 DATE: March 29, 2022 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) with generalized anxiety and bouts of moderately severe to severe depression is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran has a current diagnosis of PTSD due to experiencing an in-service stressor related to fear of hostile military activity which is consistent with the place, time, and circumstances of his service. CONCLUSION OF LAW The criteria for service connection for posttraumatic stress disorder (PTSD) have been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was on active duty in the United States Army from February 1986 to September 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified at a Board videoconference hearing in March 2022 before the undersigned Veterans Law Judge. A transcript of the hearing will be associated with the electronic record when it becomes available. On March 2022, the Veteran waived the right to initial review by the RO of evidence not previously submitted to the VA. Service Connection To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service connection for posttraumatic stress disorder (PTSD) with generalized anxiety and bouts of moderately severe to severe depression In October 2016, the Veteran submitted his Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder (PTSD). After review of the pertinent evidence, the Board concludes that the Veteran is entitled to service connection for PTSD. According to VA regulations, entitlement to service connection for PTSD requires that three elements be present: (1) evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressors actually occurred; and (3) a link between current symptomatology and the claimed in service stressors. See 38 C.F.R. § 3.304(f). 38 C.F.R. § 3.304 (f)(3) further provides that if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. In his statement, the Veteran discussed 42 days of relentless bombing and small arms fire with nightly fire missions, sleep deprivation and being in a constant state of fear with each day and night filled with anxiety and uncertainty about his future. The Veteran's unit traveled to and from combat delivering ammunition pick-ups and supplies. While stationed in the desert of Dharan, a SKUD missile hit one of the buildings leaving 28 U.S. soldiers dead and many others injured. The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) was cannon crewmember. Review of the VA treatment records reflects an emergency department visit for screening in May 2004 in which the Veteran denied mental health problems. His next visit was an October 2014 urgent care contact, in which the Veteran requested treatment for PTSD. He noted that he was bothered by loud noises, had sleep difficulties and jumpy nerves. The evidence against the claim includes the December 2016 initial posttraumatic stress disorder VA examination conducted in support of his claim. After evaluation the psychologist examiner concluded that the Veteran did not meet the DSM-V criteria for PTSD and did not have a mental disorder of any type. In support of her conclusion the examiner noted that the Veteran had daily contact with his 22-year-old son, monthly contact with high school friends, and spent his days working full-time, reading, watching movies on the internet, and listening to music. The Veteran did report an average of 4 hours nightly of broken sleep due to recurrent dark dreams, an edgy mood without panic attacks, flashbacks with loud, unexpected noises, and difficulty maintaining relationships. The Veteran was noted to be fully oriented with good eye contact and grooming with normal speech and a euthymic mood. He did not exhibit delusions or suicidal or homicidal ideation. The examiner noted that SKUD missile attacks accompanied by building destruction, the Veteran's participation in search and rescue missions, and the explosion of trucks in his convoy were adequate to support the diagnosis of PTSD. She did not find symptoms of persistent avoidance of stimuli, alterations in mood, or alterations in arousal and reactivity associated with the traumatic events. The evidence in favor of the claim includes September 2017 statements from the Veteran's ex-wife and sister. His sister remarked on noticing tremendous changes in her brother after his return from the Gulf War including constant stress, lack of motivation, depression, constant physical complaints, poor concentration, and flashbacks on holidays. His ex-wife discussed great concern over his behaviors during their 8-year marriage that began in 2004. The Veteran always appeared depressed, sad, continuously frustrated, and agitated for no reason. He was easily angered which made communicating and resolving issues difficult. She noted that the Veteran viewed himself negatively despite his achievements. These issues were irresolvable and contributed to their divorce. In August 2021, the Veteran underwent a PTSD examination with a private psychologist. She noted that the Veteran was fully oriented, had fair eye contact and responded well to all questions presented. The psychologist examiner reviewed the 2016 VA PTSD examination, the Veterans VA treatment records and that statements of his sister and ex-wife. He indicated that he was been employed with the United States Postal Service since 1994 after having not working for his first 3 years after separating from service in 1991. The Veteran confided that he does not interact with his coworkers and is able to stay to himself. The examiner diagnosed PTSD, chronic, delayed, and severe with difficulty concentrating, generalized anxiety with at least one panic attack per month, short- and long-term memory loss, flashbacks and intrusive thoughts, insomnia and sleep disturbance, overwhelming feeling of sorrow with crying spells, withdrawal, and bouts of moderately severe to severe depression due to fear of hostile military or terrorist activity. 38 C.F.R. § 3.304 (f)(3). In addition to the PTSD examination, a psychosocial assessment was performed in August 2021. The Veteran was noted to experience sleep difficulties waking up after 3 hours, profusely sweating at times, nightly nightmares regarding military events, flashbacks from Desert Storm, and become extremely upset around and avoid at all costs places, people or events reminding him of his military service. The Veteran further conveyed that he has felt emotionally numb and void of feelings since his return from the military. The examining psychologist noted that he has no close friends, difficulty trusting others, and rocky interpersonal relationships. The Veteran has avoided discussing his trauma over the years since service. He indicated that he started being seen "off and on" at the VA for these symptoms in 2017 noting that others do not understand what he went through given that he was not sure that he was "going to make it out alive." The Veteran has lived with a sense of negativity and doom since then and lost interest in activities that he enjoyed in the past including socializing and drawing. He acknowledged frequent outbursts of anger with periods of violent behavior. His mind wanders easily impairing his concentration and ability to focus. The Veteran is hypervigilant, keeping his back to the wall in public places, and has weapons, cameras, and motion detectors at home. He routinely scans his environment and has an exaggerated startle response that has resulted in his striking others in the past. During his March 2022 hearing, the Veteran noted that he is presently receiving psychiatric treatment at the VA and through a private provider. He testified regarding encountering improvised explosive devices, hostile locals, and explosions and injuries to fellow soldiers. The Board notes the conflict in the opinion provided by the 2016 VA examiner who found no mental disorder and the 2021 examiner who found that the Veteran's mental status met the criteria for PTSD with generalized anxiety and bouts of moderately severe to severe depression. The Board assigns diminished probative weight to the 2016 examiner's opinion in that the clinician's rationale for the absence of any mental disorder did not account for the Veteran's subjective accounts of stressful events during his deployment which were adequate to support the diagnosis of PTSD, the initiation of many of his current symptoms during these events, and his lay statements regarding his current symptoms. Statements of his ex-wife and sister, although not available at the time of the 2016 examination, also indicate that symptoms were present at that time but not assessed. The Veteran's statement and the family statements indicate that the Veteran has suffered with a mood disturbance since 1991 including throughout the Veteran's 8-year marriage; as well as agitation, anger, and relationship difficulties none of which are mentioned by the 2016 examiner. While the first examiner noted that the Veteran reported prominent symptoms of flashbacks, and edgy mood, panic attacks, hyperarousal, and difficulty with romantic relationships, she found no mental health disorder but did not offer any rationale to account for the Veteran's reported symptoms. In finding the 2021 examiner's opinion to be of greater probative weight than the 2016 examiner's opinion, the Board notes that it may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge, and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). In this instance, the August 2021 examiner considered the 2016 examiner's opinion, as well as the lay statements of the Veteran and relatives, and performed and documented an extensive clinical evaluation. The Board notes that the criteria for service connection for PTSD have been satisfied. As noted above, the inservice stressor is satisfied given that the regulations allow a Veteran's lay statement to establish a claimed stressor that is consistent with the places, types, and circumstances of the Veteran's service, in the absence of clear and convincing evidence to the contrary. An examining psychologist has diagnosed PTSD and a set forth her opinion regarding the link between the in-service stressor and the Veteran's current PTSD. Therefore, in light of the competent and probative evidence of record, in particular the highly probative 2021 positive medical opinion, the Board finds that service connection for PTSD is warranted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss The Veteran claims that he has a bilateral hearing impairment that had its onset in or is otherwise related to service. The Veteran underwent a VA hearing disability examination in December 2016 with audiometric evaluation. The examiner first found the military occupational specialty (MOS) of the Veteran was artillery in combat during the Gulf War such that the Veteran was exposed to high levels of hazardous noise. Further, the Veteran reported the onset of hearing loss during service. The audiologist found that in comparing enlistment and separation audiologic examinations for both ears, there were standard threshold shifts in both ears. Standard threshold shifts are specifically defined as an average of 10 decibels or greater, or a shift of 15 decibels or greater in a single frequency. The audiologist determined that it was as least as likely as not that the threshold shifts were caused by military service noise exposure. Upon audiometric testing the average pure tone thresholds were 21 decibels in the right ear and 24 decibels in the left ear. The Maryland CNC speech discrimination score was 96 percent for both ears. In the right ear the Veteran had one threshold of 30 at 4000 HZ with the remaining thresholds at 25 or below in the right ear, and thresholds of 30 and 35 at 3000 and 4000 HZ respectively with the remaining thresholds below 25. Service connection may not be established for disability due to impaired hearing unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Accordingly, the thresholds and speech recognition scores for the Veteran's December 2016 testing did not represent a hearing loss for VA disability purposes, although there was evidence of some hearing loss that occurred in service. At his March 2022 Board hearing, the Veteran testified that he is aware of his hearing loss on a daily basis and that hearing aids and a class on reading lips were recommended to him. He explained that he took the class on lip reading and paid for it with his own money. Where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thus, a remand is warranted for such an examination. In addition, given that there has been evidence of an increase in the Veteran's hearing loss with evidence of acoustic injury in service, a contemporaneous hearing disability examination is necessary. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA audiology examination. Following a review of the record and evaluation of the Veteran, the examiner should provide an opinion to the following: a. Is it at least as likely as not (50/50 probability or greater) that any diagnosed hearing loss is due to the Veteran's military service? The Veteran's exposure to hazardous noise is conceded. 2. After completion of the above development, readjudicate the claim. If the benefit sought remains denied, provide the Veteran with a supplemental statement of the case, and allow a reasonable time for response before returning the claim to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.