Citation Nr: 0812485 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 06-06 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert L. Grant INTRODUCTION The veteran had active service from April 1970 to December 1971, with additional service in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the VA Regional Office (RO) in Phoenix, Arizona which denied entitlement to service connection for PTSD, bilateral hearing loss, and tinnitus. The issue of entitlement to service connection for PTSD is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. Bilateral hearing loss was not manifested during service and the veteran is not currently shown to have bilateral hearing loss. 2. Tinnitus was not incurred in service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2007). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was accomplished by way of a letter from the RO to the veteran dated in June 2005, prior to the initial adjudication. The RO provided the requisite notification regarding the disability evaluation or the effective date that could be assigned if service connection were granted in March 2006. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated in an October 2007 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, obtained medical opinions as to the etiology of disabilities, and afforded the veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Entitlement to Service Connection for Bilateral Hearing Loss The veteran contends that he sustained bilateral hearing loss as a result of working in demolitions while serving in Vietnam. At his hearing the veteran testified to being exposed to air drills and demolitions in his capacity as a quarryman for approximately four months in 1970. The veteran has had a number of audiological examinations. Initial enlistment examination in October 1969: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 10 LEFT 5 5 5 5 Separation examination in November 1971: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 LEFT 0 0 0 0 Air National Guard physical in July 1989: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 5 20 30 LEFT 15 15 5 10 20 A VA audiologic examination conducted in August 2005: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 25 25 LEFT 25 25 15 20 30 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. The examiner stated that hearing was within normal limits bilaterally and it was not necessary to discuss the etiology of a hearing loss. An April 2006 private audiology evaluation associated with the record includes audiometric findings of pure tone hearing threshold levels that are shown in graphic form instead of numeric form. Neither the Board nor the RO can interpret graphical representations of audiometric data and are precluded from applying these graphic results to the criteria of 38 C.F.R. § 3.385. See Kelly v. Brown, 7 Vet. App. 471 (1995). The Board notes that the examiner's impression was borderline/mild high frequency hearing loss. The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 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, 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. 38 C.F.R. § 3.385. Applicable law provides that service connection will be granted if it is shown that a veteran suffers from a disability resulting from an injury suffered or a disease contracted in the line of duty, or for aggravation of a pre- existing injury suffered or disease contracted in the line of duty, in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases, such as sensorneural hearing loss, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309. Generally, to prove service connection, the record must contain: (1) Medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus or a relationship between a current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Based upon a review of the above, the Board concludes that the veteran does not meet the criteria for hearing loss pursuant to 38 C.F.R. § 3.385. Specifically, the record contains the results of several audiological examinations, none of which reveals findings that indicate a hearing disability as defined by 38 C.F.R. § 3.385. As such, the evidence does not demonstrate a current disability in the form of hearing loss and service connection is not warranted. During the course of the veteran's January 2008 hearing, his representative took exception to a statement of the VA examiner which indicated that it was not necessary to offer an opinion as to the etiology of the veteran's hearing loss and referenced Hensley v. Brown, 5 Vet. App. 155 (1993). When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. 38 C.F.R. § 3.385 operates only to establish when a hearing loss can be service connected. Id. The distinction in this case is that the findings on examination do not meet the criteria of a disability as defined by 38 C.F.R. § 3.385. Hensley did not alter the prerequisite that "establishing service connection requires a finding of the existence of a current disability..." Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Because the medical evidence clearly does not indicate a current disability for VA compensation purposes, it is not necessary to make a determination regarding whether the alleged hearing loss, if any, was incurred in or aggravated by active service. Service Connection for Tinnitus The veteran contends that he incurred tinnitus as a result of working in demolitions while serving in Vietnam. At his hearing, the veteran testified to being exposed to air drills and demolitions in his capacity as a quarryman for approximately four months in 1970. A review of service medical records does not indicate that the veteran complained of, or was treated for, symptoms relating to tinnitus during active service. There is no record of treatment or complaints regarding tinnitus until approximately thirty-five years later when a VA audiological examination was conducted in August 2005. At that time the veteran reported bilateral, intermittent, moderate tinnitus for thirty-five years. The examiner noted that the veteran's service medical records contained no reference to tinnitus and there was no mention of tinnitus in a prior claim. The examiner offered the opinion that it was not likely that the veteran's tinnitus, if any, had its origins in service. The record currently before the Board does not contain any additional indication that the veteran has ever complained of, or been treated for, tinnitus, either during or after active service. As a result, absent competent evidence of a nexus between the veteran's tinnitus and active service, a finding of service connection is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. REMAND A review of the record discloses a need for further development in the service connection claim for PTSD. In May 2005, the veteran submitted a PTSD questionnaire in which he asserted that he was sexually assaulted at gunpoint by a female prostitute. This event allegedly occurred in a hotel room in Saigon, Vietnam in approximately April 1971. A hearing was held before the RO in March 2006. At that time, the veteran also testified that he caught a venereal disease as a result of the encounter. At the March 2006 hearing, the veteran further testified that approximately two weeks after arriving in Vietnam, he was working as a quarryman when his unit came under sniper fire. After the firing had stopped, the veteran refused an order from a superior to leave cover and return to work. The veteran stated that because of his refusal he was demoted and reassigned to be a cook A review of service medical records does not indicate any treatment or complaints regarding psychological issues during active service. In August 1971, the veteran was treated for burning urination and venereal disease warts. A November 1971 physical examination indicated a history of gonorrhea times three. The veteran has submitted letters from two individuals who participate in a faith-based support group with the veteran. Both letters state that the veteran has discussed in group sessions the fact that he was raped at gunpoint while serving in Vietnam. Post-service medical records indicate that the veteran underwent a psychiatric assessment in April of 2005. The veteran related a history of sexual assault at gunpoint, the contraction of venereal disease as a result, and being shot at. Current symptoms included intense anger, depression, and difficulty in relationships with co-workers, and his former spouse. The examiner's "provisional diagnoses" included intermittent explosive disorder, PTSD chronic moderate, and mood disorder, recurrent, without psychosis. Additional records indicate that the veteran continued to receive treatment in August and September 2005. At that time, the veteran reported depression, tearfulness, hopelessness, and being consumed with thoughts about his military sexual trauma. The record also contains a memorandum from the RO regarding efforts to verify the veteran's alleged stressor events. The RO determined that the veteran did not supply sufficient information to verify either the shooting incident or the sexual assault. Specifically, the veteran did not report the sexual assault so there are no records of that event. At the January 2008 hearing, the veteran reiterated the details of his sexual assault and the contraction of venereal disease as a result. He also detailed difficulties in getting along with co-workers while working as a cook, increased drinking, and change of attitude including anger. The veteran stated that behavioral changes continued after he returned from Vietnam, particularly his difficulties in relationships resulting in problems at work and divorce. Service connection for PTSD requires a current medical diagnosis of post-traumatic stress disorder, credible supporting evidence that a claimed in-service stressor actually occurred, and medical evidence establishing a nexus between the claimed in-service stressor and the current symptomatology of the post-traumatic stress disorder. See 38 C.F.R. § 3.304(f). If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. The veteran has consistently provided a stressor event involving sexual assault. Nothing in the record appears to contradict the veteran's assertions in that regard. Additionally, the veteran's contention that he contracted a venereal disease as a result of the encounter is supported by the record. Two letters were provided from members of the veteran's support group which support that the veteran has repeated the same story in group therapy sessions. The veteran has testified to behavioral changes and to deterioration in work performance and medical records demonstrate evidence of depression and substance abuse. The Board concludes that the veteran's assertions regarding a sexual assault during service and his assertions regarding behavioral changes as a result, are credible and uncontradicted by the record, and therefore constitute credible evidence that the claimed in-service stressor actually occurred. Given the April 2005 "provisional" diagnosis of PTSD and the credible evidence supporting the claimed in-service stressor, the veteran should be afforded a VA examination. 38 C.F.R. § 3.159(c)(4). Accordingly, this case is REMANDED for the following actions: 1. Schedule the veteran for a VA psychiatric examination to address the current nature and likely etiology of any current PTSD or other psychiatric disability. The examiner must be provided with the veteran's claims file for review. Based on the examination and review of the claims folder, the examiner should address the following: (a) If a diagnosis of PTSD is appropriate, the examiner should specify (1) whether each in-service sexual assault described by the veteran was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and the in-service sexual assault described by the veteran and found to be sufficient to produce PTSD by the examiner. Any opinions expressed by the examiner must be accompanied by a complete rationale. (b). If the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not that any currently demonstrated psychiatric disorder, other than PTSD, is related to the veteran's military service. 2. After completion of the above, the RO should review the expanded record and determine if the veteran's claim can be granted. If the claim remains denied, the RO should issue a supplemental statement of the case and afford the veteran an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs