Citation Nr: 0810169 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 06-21 590A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a vestibular disorder. 3. Entitlement to an initial disability rating higher than 30 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from November 1946 to February 1954, and from June 1962 to December 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). A hearing was held at the RO before the undersigned Veterans Law Judge in March 2008. The claim for a higher initial rating for 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. FINDINGS OF FACT 1. The veteran has hearing loss which was caused by exposure to acoustic trauma during service. 2. A vestibular disorder was not present until many years after service, and is not related to any event during service. CONCLUSIONS OF LAW 1. Hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2007). 2. A vestibular disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter: Duty to Assist Initially, the Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in June 2004, July 2004, August 2004, March 2005, and May 2006 provided the veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The initial duty to assist letter was provided prior to the adjudication of the claims. In addition, the letters adequately informed the veteran that he should submit any additional evidence that he had in his possession. Notice in May 2006 also included information regarding the evidence to establish a disability rating and an effective date for the award of benefits if service connection is awarded. The VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board concludes, therefore, that the appeal may be adjudicated without a remand for further notification. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The veteran's service medical records and available post service treatment records have been obtained. He has had a hearing. He has been afforded VA examinations. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claims. Therefore, no further assistance to the veteran with the development of evidence is required. I. Entitlement To Service Connection For Bilateral Hearing Loss. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131. If a chronic disorder such as an organic neurological disorder is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Before service connection may be granted for hearing loss, the hearing loss must be of sufficient severity to be considered to be a disability under VA regulations. For the purpose of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. See 38 C.F.R. § 3.385. This regulation, although prohibiting an award of service connection where audiometric test scores are within the established limits, does not prevent a veteran from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. See Ledford v. Brown, 3 Vet. App. 87 (1992). When hearing loss was not initially manifested during service or within the presumptive period, "direct" service connection may still be established by evidence demonstrating that the disease was in fact incurred or aggravated by service. See Hensley v. Brown, 5 Vet. App. 155 (1993). The veteran contends that he developed hearing loss as a result of exposure to noise while on active duty. He asserts that he was exposed to noise from firing rifles, machine guns, artillery, explosions, and helicopters. The veteran's DD 214 shows that his military occupational specialties were rifleman and air operation officer. His awards and decorations included two Combat Infantryman Badges, the Silver Star, the Purple Heart, and the Air Medal (9th award). Therefore, his account of exposure to loud noises is accepted as being accurate. The evidence pertaining the veteran's current hearing loss includes the report of a hearing loss examination conducted by the VA in January 2005. His average pure tone thresholds were 63 decibels in the right ear and 101+ in the left ear. The examiner concluded that the veteran's "history of unprotected military noise exposure did have some impact on his hearing as some audiograms (performed while he was in the service) did show a hearing loss and/or notch pattern." However, he further stated that the last audiogram during service showed normal hearing. Therefore, the VA examiner concluded that the progression of hearing loss was most likely due to the aging process in conjunction with a viral infection. On the other hand, the report of an ear examination conducted by Loren J. Bartels, MD, FACS, in August 2006 tends to support the claim. The report reflects that the veteran was found to have hearing loss in both ears. He was noted to be profoundly deaf in the left ear, and had moderate sensorineural loss in the right ear with only 76% word discrimination. The physician concluded that the right ear hearing loss was a combination of noise exposure and heredity. The physician stated that research shows that people with noise induced hearing loss have more rapid progression of hearing loss over time. The doctor further stated that the left ear had suffered a sudden hearing loss in July 2003, but were that left ear not to have suffered such a catastrophe, then he would expect that ear to be quite like the right ear with a similar disability rating. After reviewing all of the evidence of record, the Board finds that the veteran has given a credible history of noise exposure during service. The history of noise exposure in service is consistent with his military occupation of being a rifleman and air operation officer, as well as with his award of the Combat Infantryman Badge, a Purple Heart, Silver Star and nine awards of the Air Medal. In addition, the VA examination report reflects the presence of hearing loss of sufficient severity to meet the requirements of 38 C.F.R. § 3.385. The Board finds that the private opinion that the veteran's hearing loss is due in part to noise exposure in service supports his claim. Resolving reasonable doubt in favor of the veteran, the Board finds that the evidence reasonably shows that the veteran has hearing loss which was caused by exposure to noise during service. Accordingly, the Board concludes that the hearing loss was incurred in service. II. Entitlement To Service Connection For A Vestibular Disorder. The veteran testified during the hearing held in March 2008 that he was exposed to noise in service, and that this caused damaged to the vestibular tissue in his ears. The veteran's service medical records, however, are negative for any references to a vestibular disorder. The report of a medical history given by the veteran in September 1975 for the purpose of his retirement shows that he denied having dizziness. The report of a medical examination conducted at that time shows that his ears were normal. The earliest post service records pertaining to such a disorder are from many years after separation from service. The recent treatment records do not contain any opinion relating the disorder to noise exposure during service. On the contrary, a record from the Brandon Regional Hospital dated in July 2003 reflects that the veteran reported having woken up the previous Tuesday with an inability to maintain his balance. Following evaluation, it was felt that there was a possibility of Meniere's disease in the left ear, versus acute viral vestibulitis. The physician did not give any indication that the problems could be related to noise exposure many years earlier in service. Subsequent VA treatment records indicated that the veteran was diagnosed as having a herpes zoster oticus. In summary, the evidence shows that a vestibular disorder was not present until many years after service, and is not related to any event during service. On the contrary, the medical evidence shows that the onset was recent, and was due to nonservice-connected disease. Accordingly, the Board concludes that a vestibular disorder was not incurred in or aggravated by service. ORDER 1. Service connection for hearing loss is granted. 2. Service connection for a vestibular disorder is denied. REMAND The Board finds that additional development of evidence is required with respect to the claim for a higher rating for PTSD. The Board notes that the law requires that VA afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d). The veteran was previously afforded a VA psychiatric examination in February 2006, however, the purpose of the examination was to determine whether or not the veteran had PTSD rather than the degree of severity. The examination report concluded that no PTSD was present. The Board notes, however, that the examiner noted that he did not have the veteran's claims file available for review. In light of this, the Board concludes that the opinion that the veteran did not have PTSD was not a fully informed one, and the examination report is not adequate for rating purposes. Therefore, another examination is required. Accordingly, the case is REMANDED for the following action: 1. The veteran should also be scheduled for a VA psychiatric examination to determine the current severity of his service-connected PTSD. The examiner is requested to determine all current manifestations associated with the veteran's PTSD and to comment on their severity. The examination should specifically address the degree of social and occupational impairment caused by the veteran's PTSD. A current Global Assessment of Functioning (GAF) scale score should be provided. The claims folder should be available for review in conjunction with the examination. The examiner should also indicate the effect, if any, that the veteran's PTSD has on his employability. All findings, and the reasons and bases therefore, should be set forth in detail. 2. Thereafter, the RO should readjudicate the appellant's claim. If the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period should be allowed for the appellant to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs