Citation Nr: 22044690 Decision Date: 08/08/22 Archive Date: 08/08/22 DOCKET NO. 19-25 782 DATE: August 8, 2022 ORDER Entitlement to service connection for hearing loss is granted. REMANDED Entitlement to service connection for a psychiatric disorder, to include Post Traumatic Stress Disorder (PTSD) is remanded. FINDING OF FACT The Veteran's bilateral hearing loss is related to noise exposure during his military service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1110, 5107, 5121; 38 C.F.R. §§ 3.102. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active military from November 1981 to November 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing testimony is of record. The Veteran's claim of service connection has been recharacterized to include all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection for hearing loss To establish an entitlement to service connection for a disability, a veteran must meet three criteria: (1) 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, all three elements of service connection are met by the competent and credible evidence. First, the Veteran has a present disability for hearing loss. His disability was documented in an October 2016 VA Compensation and Pension (C&P) examination which indicated a diagnosis of sensorineural hearing loss for VA purposes. Second, the service record is clearly annotated that the Veteran worked as an Aviation Mechanic. The Veteran contended that he was exposed to excessive noise based on his proximity to the flight deck. Thus, the first two elements of service connection are met. The issue in this case is whether the Veteran's hearing loss is due to the noise exposure that he suffered in service. The Veteran was provided a VA examination in October 2016. After a review of the claims file and an examination of the Veteran, the examiner found it was less likely than not that the Veteran's hearing loss was related to military service, reasoning that the Veteran's hearing was within normal limits at separation and that the Veteran indicated that he began noticing hearing problems "only a few years ago." However, the Court of Appeals for Veterans Claims held in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), that normal hearing at separation from service does not by itself preclude an award of service connection. Moreover, although the Veteran reported to the VA examiner that he first noticed his hearing loss "a few years ago," he clarified during the hearing that his he first noticed his hearing loss within the first year after his separation from service. Thus, to the extent that the October 2016 VA examiner based his opinion on the Veteran having normal hearing at separation from service and an inaccurate factual premise concerning the onset of hearing loss, the Board finds the medical opinion inadequate and gives it no probative weight. Resolving reasonable doubt in the Veteran's favor, his hearing loss is at least as likely as not related to his excessive in-service noise exposure. At a hearing held in August 2021 via videoconference, the Veteran testified that he was constantly exposed to loud noise while working on or near the flight deck of two aircraft carriers. He even recalled a cautionary "loud noise" warning sign on the entrance door to his shop. Further, the Veteran testified that he noticed his hearing loss within one year of separation from service and that it has continued to worsen since that time. 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(b). Considering the Veteran's credible and competent testimony of his in-service noise exposure, coupled with his hearing loss symptomatology within one year of separation from service, the Board finds that his bilateral hearing loss disability is related to service. The Board notes that the Veteran provided a private medical opinion from an orthopedic surgeon linking his hearing loss to service; however, the Board finds that discussion of that evidence is unnecessary in light of the Veteran's competent and credible testimony linking his hearing loss to his in-service noise exposure. As such, service connection for bilateral hearing loss is warranted. REASONS AND BASES FOR REMAND Entitlement to service connection for all psychiatric disability is remanded. The Veteran contends that he is entitled to service connection for a psychiatric disability, to include depression, anxiety, and PTSD because their onset began while he served in the Navy and was caused by a series of stressors he endured. At the August 2021 hearing, the Veteran testified that he underwent the Shellback initiation, which he described a hazing process, when a sailor deploys on a Western Pacific tour. The Veteran also testified at the hearing that he had guns drawn on him; he witnessed a plane with a pilot in it go overboard while a technician who was trying to save the plane suffered a serious head injury and possibly died. See Hearing Tr. at pages 11-12. The Veteran asserts that as a result of his experiences, he now suffers from nightmares, feels anxious and paranoid, and experiences panic attacks. Generally, service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in- service stressor; and credible supporting evidence that the claimed in- service stressor occurred. 38 C.F. R §§ 3.304(f), 4.125(a). In a September 2021 evaluation by Dr. Austin-Small it is reported that the Veteran was diagnosed with PTSD, anxiety, depression, and alcohol use disorder. See November 2021 Private Medical Opinion at page 5. The Veteran's service treatment records of March 1982 also showed that he was evaluated for alcohol use and was later admitted for alcohol rehabilitation, followed by outpatient group therapy while still in the Navy. The Veteran also testified to multiple stressors during his time on the carriers. The issue turns on the requirement for credible supporting evidence concerning the Veteran's in-service stressors. The Veteran's claims file lacks credible supporting evidence of the in-service stressors he reported. While Dr. A-S opined that his medical opinion is based on "historical records" in his possession, the Board notes that these historical records are not part of the claim file. Remand is therefore necessary so that attempts to obtain corroboration of the Veteran's reported stressful events can be made. Finally, the Veteran has explicitly challenged the competence of the October 2016 examiner and has requested that the VA provide the Veteran with the examiner's qualifications. Although VA need not address the competency of an examiner in every case, it must do so when the Veteran raises the issue of competency. Francway v. Wilkie, 940 F.3d 1304, 1307 (Fed. Cir. 2019). Once the Veteran raises a challenge to the competency of the medical examiner, VA must satisfy its burden of persuasion as to the examiner's qualification. As the record does not indicate that VA responded to the request for the examiner's qualification, production of said documents is warranted. The matters are therefore REMANDED for the following actions: 1. Attempt to verify the Veteran's claimed in-service stressors, to include his eyewitness statement of a sailor being blown overboard. The Board notes that deck or ship logs may contain relevant information and should be requested. If necessary, request that the Veteran provide any additional information needed to assist in the verification of stressors. 2. Ask the Veteran and his representative to provide any historical records in their possession concerning the Veteran's reported stressors. 3. Schedule the Veteran for a VA examination with an appropriately qualified examiner to ascertain whether the Veteran's psychiatric disorders are related to military service. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. After review of the claims file and examination of the Veteran, the examiner should list any and all psychiatric disorders present under DSM-5. If the Veteran is diagnosed with PTSD, the examiner should indicate all stressors such a diagnosis is predicated on and whether such stressor (s) occurred during military service. For all other psychiatric disorders found (other than PTSD), the examiner should provide an opinion as to the likelihood that those disorders began in service or are otherwise the result of military service, to include the Veteran's statements regarding being hazed during Shellback initiation and another other reported event, injury, or disease in service. In addressing the above, the examiner must review all pertinent evidence of record, including any lay statements from the Veteran, regarding the onset of his symptoms and recurrence of symptoms since discharge from service. The examiner should provide a rationale for all conclusions reached. 4. Provide the Veteran and his representative with evidence concerning the education and/or qualifications of the examiner who conducted the October 2016 VA examination. This evidence may include curriculum vitae, a detailed resume, list of publications and/or a list of specialties. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.H. Finlay 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.