HEARING LOSS

KATE E. KOVAROVIC · 2022 · Case ID: 22018614

MIXED

Summary

The Veteran, an Army Veteran who served from January 1967 to June 1970, including service in the Republic of Vietnam, appeals the denial of service connection for bilateral hearing loss and the denial of service connection for an acquired psychiatric condition, to include PTSD. The Board reopened the bilateral hearing loss claim based on new and material evidence, including a January 2013 VA examination that confirmed hearing loss and noted in-service noise exposure. However, the Board remanded this claim for a new VA audiology opinion to address the nexus to service, considering the Veteran's reported onset of hearing loss post-service and the lack of in-service hearing threshold shifts. For the psychiatric claim, the Board found conflicting opinions: a January 2013 VA examiner diagnosed anxiety and mood disorders but found anxiety related to service, while a September 2020 private psychologist diagnosed PTSD and Major Depressive Disorder, linking PTSD to combat exposure and considering depression secondary to PTSD. The Board found these opinions to be of equal probative value and, finding the evidence in relative equipoise, resolved reasonable doubt in the Veteran's favor. Service connection for an acquired psychiatric condition, including PTSD, was granted.

Rationale

Reopened based on new and material evidence (Jan 2013 VA exam); VA exam confirmed hearing loss and noted in-service noise exposure; Remanded for addendum opinion on nexus to service

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-23 781

Full Decision Text

Citation Nr: 22018614
Decision Date: 03/29/22 Archive Date: 03/29/22

DOCKET NO. 17-23 781
DATE: March 29, 2022

ORDER

New and material evidence having been received, the application to reopen the claim of entitlement to service connection for bilateral hearing loss is granted.

Service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD), is granted.

REMANDED

Entitlement to service connection for bilateral hearing loss is remanded.

FINDINGS OF FACT

1. A July 1979 rating decision denied service connection for bilateral hearing loss; the Veteran did not perfect an appeal of that decision or submit new and material evidence within the remainder of the appeal period. That decision is final.

2. Evidence received since the July 1979 rating decision contributes to a more complete picture of the Veteran's disability.

3. Resolving reasonable doubt in the Veteran's favor, the Veteran has an acquired psychiatric condition that is at least as likely as not related to his military service.

CONCLUSIONS OF LAW

1. Evidence submitted to reopen the claim for service connection for bilateral hearing loss is new and material, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

2. The criteria for entitlement to service connection for an acquired psychiatric condition, to include PTSD, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from January 1967 to June 1970 with foreign service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested and was scheduled for a January 2022 Board hearing. However, in December 2021, the Veteran requested that his hearing be cancelled. Accordingly, the Board considers the hearing request withdrawn.

The Veteran initially filed separate claims for entitlement to service connection for PTSD, anxiety, and depression. However, the Board finds that combining those issues into one claim entitlement to service connection for an acquired psychiatric condition, to include PTSD, anxiety, and depressionis more appropriate. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for bilateral hearing loss

Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Service connection for bilateral hearing loss was denied in a July 1979 rating decision on the basis that the available records did not show that the Veteran received treatment for his condition during service nor was it recorded in the report of his examination at the time of his discharge. The Veteran did not submit a timely substantive appeal, and the decision became final. 38 C.F.R. §§ 3.156(b), 20.1103.

The Veteran submitted the current request to reopen his claim in August 2012. A June 2013 provisional rating decision reopened the claim but denied it on the merits. The Veteran submitted a timely notice of disagreement and an October 2014 final rating decision denied the claim on the merits. This appeal followed.

The evidence received since the July 1979 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, a January 2013 VA examination confirmed a diagnosis of hearing loss and documents the Veteran's testimony as to in-service noise exposure. As this evidence contributes to a more complete of the Veteran
156(b), 20.1103.

2. Entitlement to service connection for an acquired psychiatric condition, to include PTSD

The Veteran contends that he has PTSD, anxiety, and depression that is related to his in-service combat experience. The RO has conceded that the Veteran experienced fear of hostile military or terrorist activity, and the Board finds no good cause to challenge such a finding at this time. See June 2013 Rating Decision.

Service connection for PTSD requires a medical diagnosis of PTSD 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 supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f).

Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 C.F.R. § 3.304 (d); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996) (under 38 U.S.C. § 1154 (b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service).

The question for the Board is whether Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. There are conflicting opinions regarding whether the Veteran has a current PTSD diagnosis.

The evidence against the claim includes a January 2013 VA examination. The VA examiner concluded that the Veteran did not have a current PTSD diagnosis but diagnosed the Veteran with anxiety disorder, mood disorder, and alcohol dependence (remission). This conclusion was based on an assessment of the Veteran and a review of his medical records. Further, the VA examiner indicated that the Veteran's anxiety disorder, not otherwise specified, was more likely than not directly related to his fear-based stressors reported during the examination and his military service.

The evidence in favor of the claim includes a September 2020 private assessment and opinion provided by a clinical psychologist. The psychologist diagnosed the Veteran with PTSD and Major Depressive Disorder (MDD) after administering cognitive assessments. The private practitioner concluded that the Veteran's PTSD is due to his in-service combat exposure. Furthermore, the psychologist concluded that, although the Veteran experiences anxiety symptoms and has had an anxiety disorder diagnosis in the past, "his anxiety is better accounted for by a PTSD diagnosis" and "therefore, a separate anxiety disorder was not diagnosed" at the time of the assessment. Lastly, the private psychologist opined that, although the Veteran has MDD, it "appears to be associated with and secondary to the impact of his [PTSD]," because "the symptoms cannot be differentiated from the impact of this PTSD."

The above opinions are of equal probative value in this case, as both examiners offered definitive diagnoses and rationales as supported by contemplation of the nature of the Veteran's symptomatology and his military service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In so finding, the evidence is at least in relative equipoise as to whether the Veteran shows current PTSD in accordance with VA regulations. Thus, a current psychiatric disability, inclusive of PTSD, is hereby found.

The Veteran is in receipt of a Bronze Star Medal (1 OLC), as documented in his June 1970 DD Form 214; as discussed herein, his fear of hostile military activity was previously conceded by the RO.

As such, when combined with the positive medical nexus opinion and absent clear and convincing evidence to the contrary, service connection for an acquired psychiatric disability,
302-04 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In so finding, the evidence is at least in relative equipoise as to whether the Veteran shows current PTSD in accordance with VA regulations. Thus, a current psychiatric disability, inclusive of PTSD, is hereby found.

The Veteran is in receipt of a Bronze Star Medal (1 OLC), as documented in his June 1970 DD Form 214; as discussed herein, his fear of hostile military activity was previously conceded by the RO.

In sum, the Board finds the evidence to be in approximate balance as to whether the Veteran has a current psychiatric condition that is related to his in-service combat stressors. Accordingly, service connection for an acquired psychiatric disability, including PTSD, is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to service connection for bilateral hearing loss is remanded.

Reopening the claim does not end the matter; rather, the claim must now be addressed on the merits. However, the Board finds that additional development is needed prior to adjudication of this claim.

A VA examination was obtained in January 2013. The VA examiner confirmed the diagnosis of bilateral hearing loss but opined that it was less likely than not related to the Veteran's service, to include in-service noise exposure. The rationale was that there was no evidence of a threshold shift in hearing between the Veteran's entrance and separation examinations. However, hearing loss need not be shown during service for service connection to be established if there is competent evidence linking the current condition to service. Accordingly, the Board finds that an addendum opinion is needed.

The matter is REMANDED for the following action:

1. Send the claims file to a VA audiologist to obtain an addendum opinion on the claim for service connection for hearing loss. If a new examination is deemed necessary to respond to the question presented, one should be scheduled.

Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran's hearing loss is related to service.

The examiner should explain why or why not, to include addressing the Veteran's reports of experiencing hearing loss beginning in 1970 or 1971 and his report of no post-service hazardous noise exposure. The examiner should also explain why the Veteran's current hearing loss is/is not a delayed response to his in-service noise exposure.

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2. If the claim remains denied, issue a supplemental statement of the case.

Kate E. Kovarovic

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board G. N. Wilson, 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.

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