Citation Nr: 22044356 Decision Date: 08/04/22 Archive Date: 08/04/22 DOCKET NO. 18-24 479 DATE: August 4, 2022 ORDER Service connection for left ear hearing loss is granted. REMANDED Service connection for right ear hearing loss. Service connection for a psychiatric condition, to include posttraumatic stress disorder (PTSD). FINDINGS OF FACT The Veteran's left ear hearing loss had its onset during service. CONCLUSIONS OF LAW The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1972 to February 1976. The case is on appeal from an October 2016 rating decision. In October 2021, the Veteran testified at a Board hearing. Service Connection 1. Service connection for left ear hearing loss. The Veteran contends that he has hearing loss due to aircraft engine noise exposure during service. Board Hr'g Tr. 3-7. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. An August 2016 VA examination confirms a current left ear hearing loss under 38 C.F.R. § 3.385, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 15 25 70 75 Because auditory thresholds at this examination were 40 decibels or greater in any of the frequencies, a hearing loss for VA purposes is established. See 38 C.F.R. § 3.385. The Veteran's service treatment records (STRs) show hearing acuity at service entrance in January 1972 measured as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 5 0 -- 35 The Veteran denied a history of hearing loss and ear trouble. At a May 1975 examination during service, his hearing acuity was measured as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 0 0 5 40 He again denied a hearing loss and ear trouble. At his January 1976 service separation examination, his hearing acuity was measured as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 5 0 0 45 A diagnosis of high frequency hearing loss was made. The STRs do not show a hearing loss under § 3.385 at service entrance. The August 2016 VA examiner found that the Veteran had a preexisting left ear hearing loss at service entrance. However, because his hearing impairment did not meet VA's definition of a "disability" for hearing loss under 38 C.F.R. § 3.385, the Veteran is entitled to the presumption of soundness under § 1111. See McKinney v. McDonald, 28 Vet. App. 15, 21 (2016); see also 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The August 2016 VA examiner went on to opine that the Veteran's preexisting hearing loss was not aggravated beyond the normal progression in service. The examiner reasoned that the entrance examination showed a mild high frequency hearing loss in the left ear and the examination performed 4 years later also showed a mild high frequency hearing loss in the left ear. The Board finds that this opinion does not show that the Veteran's hearing loss clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated during service. At service entrance, no diagnosis of hearing loss was made. A hearing loss disability under § 3.385 was established by service separation with a diagnosis of high frequency hearing loss made at that time. The VA examiner's opinion does not reach the degree of certainty required to establish by clear and unmistakable evidence that there was not aggravation during service. See, e.g., Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (citing Harris, v. West, 11 Vet. App. 456, 462 (1998)). Hence, the presumption of soundness is not rebutted, and the in-service diagnosis of high frequency hearing loss is deemed incurred in service. See Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2012) (noting that such a finding establishes the second element of service connection), aff'd 749 F.3d 1370 (Fed. Cir. 2014); see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). There is no material dispute that the current hearing impairment is related to the high frequency hearing loss first diagnosed in service. The August 2016 VA examiner gave a negative opinion, but based this on the underlying rationale that there was no aggravation of the preexisting hearing loss during service. Otherwise, the VA examiner does not appear to have disputed a nexus to the current hearing loss. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current left ear hearing loss had its onset in service. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for left ear hearing loss is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for right ear hearing loss. At his Board hearing, the Veteran contended that he has hearing loss due to aircraft noise exposure during service. Board Hr'g Tr. 3-7. Unlike the for the left ear, right ear hearing loss was not shown in service. In connection with his current claim, the Veteran underwent a VA examination in August 2016. The VA examiner gave a negative opinion. More recently, at his Board hearing, the Veteran reported attending a VA audiologic evaluation the week prior. Board Hr'g Tr. 5. Because he identified this evaluation as potentially relevant, and it is not currently in the claims file, the Board finds that remand is needed to obtain it. 2. Service connection for a psychiatric condition, to include PTSD. The Veteran contends that he has a current psychiatric condition due primarily to two traumatic events during service. During the first, he was training to be a flight engineer when one of two engines on the aircraft in which he was flying shut down. Board Hr'g Tr. 13. They had to make an emergency landing, which scared him. Board Hr'g Tr. 14. During the second incident, he was on an aircraft flying across the country, when they lost an engine in-flight. They had to make an emergency landing. Board Hr'g Tr. 14. He described other incidents as well, such as being on a flight with a drunken flight engineer and coming in too low for a landing on another flight. Board Hr'g Tr. 14-15. Post-service VA and private (non-VA) medical records show multiple diagnoses. A private (non-VA) urgent care evaluation in July 2012 shows a diagnosis of adjustment disorder and anxiety, generalized. A May 2013 private psychiatric evaluation shows depressive disorder secondary to another medical condition; he was found to not meet the criteria for PTSD. A comprehensive private evaluation in July 2013 reflects diagnoses of Bipolar I disorder, mixed; attention-deficit/hyperactivity disorder (ADHD), not otherwise specified (NOS); insomnia; panic disorder without agoraphobia; generalized anxiety disorder (GAD); anxiety disorder due to a general medical condition; and alcohol dependence in remission. A December 2014 VA assessment indicated bipolar disorder and PTSD. In light of this information, a remand for a VA exmaination and medical opnion is warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records, including records of all treatment obtained through VA's Choice program and all records scanned into his electronic health record. 2. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disorder. (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (b.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include emergency landings during flights in service. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.