Citation Nr: 22030786 Decision Date: 05/25/22 Archive Date: 05/25/22 DOCKET NO. 18-51 511 DATE: May 25, 2022 REMANDED Entitlement to an increased disability rating in excess of 50 percent for PTSD is remanded. Entitlement to an initial compensable disability rating for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from August 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA); this case is in VA's legacy appeals system. In January 2022, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. 1. Entitlement to an increased disability rating in excess of 50 percent for PTSD is remanded. At his January 2022 Board hearing, the Veteran testified that his PTSD symptoms have increased in severity since the Veteran was last examined by VA in October 2018. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD disability. 2. Entitlement to an initial compensable disability rating for left ear hearing loss is remanded. At his January 2022 Board hearing, the Veteran testified that his left ear hearing loss symptoms had increased in severity since the Veteran was last examined by VA in October 2018. Furthermore, because a decision on the remanded issue of service connection for right ear hearing loss could significantly impact a decision on the issue of an increased rating for left ear hearing loss, the issues are inextricably intertwined. A remand is necessary to provide the Veteran an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left ear hearing loss disability and to allow the Agency of Original Jurisdiction (AOJ) to readjudicate the issue of service connection for right ear hearing loss. 3. Entitlement to service connection for right ear hearing loss is remanded. In a July 2016 rating decision, the AOJ denied service connection for the Veteran's right ear hearing loss because of the lack of evidence showing it was caused or aggravated by his conceded in-service noise exposure. The AOJ relied on a June 2016 VA examination and opinion. The examiner's rationale was that the lack of a permanent positive threshold shift greater than normal measurement variability at any frequency between 500 Hz and 6000 Hz between his induction and separation examinations. The examiner did not explain or cite any medical literature explaining why this lack of permanent positive threshold shift during service made it less likely than not that the Veteran's conceded in-service noise exposure caused his current right ear hearing loss. In October 2018, a second VA examiner offered a similar opinion, based on the same lack of permanent positive threshold shift and lack of complaint of hearing loss during service. The October 2018 examiner stated that auditory damage and hearing loss are not conceded based on noise alone, rather, there must be a nexus of auditory damage to relate current hearing loss to military noise exposure and not another etiology. The October 2018 examiner did not suggest any other etiology for the Veteran's hearing loss or explain why this lack of permanent positive threshold shift or complaints during service made it less likely than not that the Veteran's conceded in-service noise exposure caused his current right ear hearing loss. The absence of a hearing loss disability in service does not preclude service connection if the evidence shows a current hearing loss disability was nevertheless incurred in or aggravated by in-service hazardous noise exposure. See Hensley v. Brown, 5 Vet. App. 155, 163-64 (1993). All competent evidence of record must be considered, including lay statements regarding symptoms, dates of symptom onset, and treatment. Id.; See also Layno v Brown, 6 Vet. App. 465, 470 (1994). Both of the VA examiner's opinions are inadequate to support a Board decision because they appear to assume, without sufficient explanation, that the lack of hearing loss during service precludes a finding that in-service noise exposure caused post-service hearing loss. Furthermore, the Veteran has been diagnosed with right ear sensorineural hearing loss. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Sensorineural hearing loss is an organic disease of the nervous system and, therefore, a chronic condition under § 3.309(a). Neither VA examiner addressed whether the Veteran's hearing loss manifested to a compensable degree within a one-year presumptive period following separation from service; or, if it was noted in service (or within the one-year presumptive period) with continuity of symptomatology since service. A remand is required to provide an adequate opinion that addresses these issues. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. 2. Schedule the Veteran for a VA examination for his bilateral hearing loss. The examiner must review the claims file. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria for both ears. The examiner is asked to provide a response to the following: Is the Veteran's right ear hearing loss at least as likely as not related to service, including conceded in-service exposure to hazardous noise levels? Is it at least as likely as not that the Veteran's right ear sensorineural hearing loss (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner is reminded that noting that a hearing disability did not manifest in service, as the sole basis for a negative nexus opinion and without additional explanation, is not an adequate rationale to support a Board decision. The examiner is further reminded that if an opinion is based on Institute of Medicine's 2006 report, titled "Noise and Military Service: Implications for Hearing Loss and Tinnitus," the apparently contradictory findings therein must be addressed. See McCray v. Wilkie, 31 Vet. App. 243 (2019). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah 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.