Citation Nr: 1044397 Decision Date: 11/26/10 Archive Date: 12/03/10 DOCKET NO. 03-11 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of ruptured eardrums. 2. Entitlement to service connection for psychiatric disorder, to include posttraumatic stress disorder (PTSD) related to personal trauma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty in the United States Navy from August 1974 to November 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). In June 2004, the Veteran testified at a videoconference hearing before the undersigned. A transcript of this hearing is of record. This case was before the Board in January 2006 when it was remanded for additional development. The Board notes that, in the December 2002 rating decision, the RO (in pertinent part) denied service connection for PTSD. The RO has continued to characterize this claim as entitlement to service connection for PTSD. However, review of the claims file reflects that the Veteran has been diagnosed with other psychiatric disabilities, including mood disorder and depression. Given the diagnoses of record, the Board has re-characterized this issue on appeal as entitlement to service connection for a psychiatric disability, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The issue of entitlement to service connection for psychiatric disorder, to include PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. The competent medical evidence of record does not show that the Veteran has any current ear diseases or infections as residuals disorder from when his eardrums were ruptured in service. 2. A hearing loss disability of either ear was not manifested in service; sensorineural hearing loss was not manifested in the first post-service year; and a preponderance of the evidence is against a finding that a current hearing loss disability is related to an event, injury, or disease in service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of ruptured eardrums have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty to Notify and Assist under the Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The VCAA applies to the matter being addressed herein. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the claim of service connection for decided herein, the Veteran was provided with VCAA notice in October 2002 letter from the RO that explained what the evidence needed to show to substantiate the claim. The letter also explained that VA was responsible for obtaining relevant records from any federal agency, and would make reasonable efforts to obtain records not held by a federal agency, but that it was the Veteran's responsibility to make sure that VA received all requested records not in the possession of a federal department or agency. Additionally, the VA sent a notice letter in August 2009 that informed the Veteran on how it determines ratings and effective dates of awards. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although this notice was sent after the initial adjudication, the Board finds this error non-prejudicial to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the August 2009 letter fully complied with the requirements of 38 U.S.C. § 5103(a), 38 C.F.R. § 3.159(b), and Dingess, supra, and after the notice was provided the case was re-adjudicated and a September 2009 statement of the case was provided to the Veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a statement of the case that complies with all applicable due process and notification requirements constitutes another adjudication decision). Moreover, the Veteran had ample time to respond to the letters or supplement the record. Neither he nor his representative alleges that notice has been less than adequate. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. Regarding VA's duty to assist, the RO has obtained the Veteran's service treatment records and post-service treatment records. All available pertinent medical evidence identified by the Veteran has been obtained. VA provided the Veteran with medical examinations in April 2008, August 2008 and June 2009, in conjunction with his claim for residuals of ruptured eardrums. Collectively, these examiners have discussed whether there is evidence of any current disorder, which is etiologically related the Veteran's history of ruptured eardrums in service. The Board finds that these examinations are accordingly fully adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). 2. Service Connection A veteran is entitled to service connection for disability resulting from disease or injury or aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Certain chronic diseases, including diseases of the nervous system (sensorineural hearing loss) may be service connected on a presumptive basis if manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Hearing loss disability is defined by VA regulation. For the purpose 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, or 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. To prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decisions, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In this case, the Veteran seeks entitlement to service connection for residuals of ruptured eardrums. He contends that his disorder is manifested by chronic ear infections and bilateral hearing loss. (The Veteran has previously been awarded service connection for tinnitus.) A review of the Veteran's service treatment records shows he was seen and diagnosed with bilateral ruptured tympanic membranes. Several service treatment records also reflect complaints of hearing loss and show diagnosis for chronic ear infections. See 1976 service treatment records. An October 1976 separation examination report notes that clinical evaluation of the ears was normal. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 10 0 LEFT 15 15 5 0 5 The post-service treatment records show the Veteran was treated for otitis media with perforated tympanic membranes in March 1997 and March 1998. Subsequent treatment records do not show complaints of ear infections, but they do show the Veteran complained of impaired hearing, bilaterally. In September 1999, the Veteran was afforded a VA examination for ear diseases. The examination report shows that the Veteran reported he had problems with his ears beginning in 1990. Physical examination revealed healed tympanic membranes. The examiner diagnosed the Veteran with a history of ruptured tympanic membranes, which were now resolved. The examiner found that there was no evidence of any current acute or chronic ear diseases. A September 1999 VA audiological examination report notes a diagnosis of mild sensorineural hearing loss at 4000 Hertz bilaterally, but did not show that the Veteran had hearing loss disability in either ear as defined by VA. See 38 C.F.R. § 3.385. In statements received by the RO in 2002 and 2003, the Veteran stated that his eardrums ruptured in service and since that time he has had problems with ear infections and hearing loss. In June 2004, the Veteran testified that he has been treated for ongoing ear complaints by VA since 1998. The Veteran was afforded another VA audiological examination in April 2008. The examiner noted the Veteran's complaints of hearing loss. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 30 25 35 LEFT 20 20 20 25 25 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 94 percent in the left ear. Under applicable regulation, the audiometric findings revealed hearing loss disability in the Veteran's right ear, but it did not show hearing loss disability in his left ear. See 38 C.F.R. § 3.385. The examiner did not provide an opinion regarding the etiology of the right ear hearing loss, but deferred opinion until an ear disease examination could be completed. An August 2008 VA examination for ear diseases report shows notes that the Veteran's tympanic membranes were intact on examination; a monomeric membrane over a previous perforation was noted in the right ear. After reviewing the record, the examiner noted that there was no evidence of ear infections within the recent past. He stated, "The problem with the monomeric membrane being construed as a perforation of the drum occurs occasionally but I have no evidence that [the Veteran] ever has had an ear infection since the original perforation as a result of the problem at that time." The examiner noted that there was no evidence of fluid or conductive hearing loss which would have been a result of the traumatic injury to his eardrums. The examiner concluded that there was no evidence of any residuals to the Veteran's history of ruptured eardrums in service, including hearing loss or chronic ear infections. The most recent medical evidence of record shows that the Veteran was afforded another VA audiological examination in June 2009. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 15 25 LEFT 15 15 15 15 35 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 percent in the left ear. The audiometric findings do not reveal hearing loss disability in either ear. See 38 C.F.R. § 3.385. Examination also revealed that the Veteran's tympanic membranes were intact on examination; a monomeric membrane over a previous perforation was noted in the right ear. There were no signs of infection. The critical questions remaining on appeal is whether the Veteran has a current diagnosed disorder, and if so, whether any diagnosed disorder is etiologically related to his service, to include as residual of ruptured eardrums. Upon review of the evidence, the Board finds that service connection is not warranted for residuals of ruptured eardrums. While the Veteran's service treatment records do show treatment for ruptured eardrums and ear infections, the October 1976 separation examination report is silent for any findings related to residuals of ruptured eardrums, to include hearing loss. The post-service medical evidence of record shows that the Veteran has been seen for ear infections and hearing loss complaints since discharge. The first medical evidence of such disability after service is more than 22 years after service. Such a long interval of time between service separation and the earliest documentation of the disease is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In addition, although the record reflects that the Veteran had hearing loss disability of the right ear on one occasions following service (April 2008), the more recent (August 2008 and June 2009) VA examination reports do not show that the Veteran has current hearing loss disability. See 38 C.F.R. § 3.385. Regardless, the August 2008 VA examiner opined that there was no evidence of current residuals of ruptured eardrums in service (including hearing loss or chronic ear infections) related to the Veteran's in-service trauma to his ears. The evidence of record does not include any medical opinion that a current diagnosis of residuals of ruptured eardrums (to include hearing loss disability) is (or might be) related to the Veteran's service, and does not suggest that a current diagnosis of residuals of ruptured eardrums (to include hearing loss disability) might be related to his service. The Board has considered the Veteran's assertion that he currently has hearing loss and chronic ear infections related to service, to include his history of ruptured eardrums. The Board notes that the Veteran can competently offer an account of observable symptoms, such as in this case, that he has difficulty hearing and when he first noticed having problems with his hearing. See Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). Notably, however, VA will only consider impaired hearing to be a disability when it meets certain auditory findings as shown above, which requires diagnostic testing and medical expertise to determine its very nature. A hearing loss disability as defined under 38 C.F.R. § 3.385 and ear infections go beyond the readable observations of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As discussed above, the only competent medical nexus evidence comes from the August 2008 VA examiner and his opinion weighs against the Veteran's claim. In the absence of adequate evidence establishing a nexus between current residuals of ruptured eardrums and service, the Board finds that the Veteran's claim seeking service connection must be denied. In reaching the above conclusions, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for residuals of ruptured eardrums is denied. REMAND The Veteran asserts entitlement to service connection for psychiatric disorder, to include PTSD, to include as secondary to in-service personal assaults by his commanding officer. See August 2002 PTSD Questionnaire and June 2004 hearing transcript. After a review of the claims folder, the Board finds that additional development is necessary prior to adjudication of the claim. Since the January 2006 Board remand, additional evidence has been associated with the claims folder pertaining to an alleged in- service stressor. The record now contains additional statements from the Veteran and another sailor, which provide more detailed accounts of the Veteran's alleged assault by a commanding officer in the engine room while stationed on the U.S.S. Independence. Additionally, the record contains service personnel records that confirm that the Veteran and the other sailor served on the U.S.S. Independence at the same time. Moreover, the Veteran's service personnel records show a decline in his behavior during the year prior to his discharge, where he was cited for misconduct with frequent involvement with military and civilian authorities and for disciplinary action for unauthorized absences. See 38 C.F.R. § 3.304(f)(4) (effective July 13, 2010). Post-service VA and private treatment records note that the Veteran has been diagnosed with various mental health disorders, including PTSD, mood disorder and depression. On remand, the Veteran should be scheduled for a VA medical examination specifically for the purpose of determining the etiology of any psychiatric disorder, to include PTSD. See 38 U.S.C.A. § 5103A. Prior to any examination, the RO/AMC should seek the Veteran's assistance in obtaining any outstanding pertinent medical treatment records. Accordingly, the case is REMANDED for the following action: 1. With the Veteran's assistance, obtain any outstanding pertinent VA or private psychiatric treatment records. 2. The RO/AMC should afford the Veteran a VA psychiatric examination by a psychiatrist or psychologist to determine whether he suffers from a current psychiatric disability, including PTSD, which is related to service. All indicated tests and studies are to be performed, and a comprehensive social, educational and occupational history is to be obtained. Prior to the examination, the claims folder and a copy of this remand must be made available to the psychiatrist or psychologist for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The opinions provided should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. The AMC/RO is to provide the examiner with a list of confirmed stressors. a. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has PTSD related to a confirmed event in service. If the Veteran is found to have PTSD in accordance with DSM-IV criteria, the examiner should specify the stressor(s) upon which the diagnosis is based. If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for this diagnosis. The examination must be conducted following the protocol in VA's Disability Examination Worksheet for Initial Evaluation for Post-Traumatic Stress Disorder Examination, revised on April 2, 2007. b. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has an acquired psychiatric disorder other than PTSD related to his military service. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. Then, the claim for service connection for a psychiatric disorder, to include PTSD, should be re-adjudicated. If the benefit sought on appeal remains unfavorable, a supplemental statement of the case should be furnished to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002). _________________________________________________ K. R. FLETCHER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs