Citation Nr: 0814440 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 99-02 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for residuals of head injury. 4. Entitlement to service connection for an acquired psychiatric disorder. 5. Entitlement to service connection for a stomach condition, to include consideration as secondary to a service-connected disability. 6. Entitlement to service connection for diabetes mellitus, claimed as secondary to herbicide exposure. 7. Entitlement to an increased rating for hypertension, currently rated as 10 percent disabling. 8. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities. REPRESENTATION Appellant represented by: Maria M. Chesterton, attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from June 1974 to June 1977, plus subsequent service in the United States Army Reserve between 1977 and 1989. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of August 1998 and later by the Department of Veterans Affairs (VA) Philadelphia, Pennsylvania, Regional Office (RO). The Board remanded the case for additional development in February 2005. A hearing was held at the RO before the undersigned Veterans Law Judge in December 2007. The issues of entitlement to service connection for residuals of a head injury and a psychiatric disorder, the claim for an increased rating for hypertension, and the claim for a total disability rating based on individual unemployability due to service connected disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran does not currently have hearing loss of sufficient severity that auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 2. The veteran has tinnitus which was caused by exposure to acoustic trauma in service. 3. The veteran's current stomach condition was not present until many years after service, and was not caused or aggravated by a service-connected disability. 4. The veteran did not have service in Vietnam, and has not presented credible evidence that he was exposed to herbicides such as Agent Orange. 5. Diabetes mellitus was not present until many years after service and there is no competent evidence that the veteran's current diabetes is related to service. CONCLUSIONS OF LAW 1. Hearing loss 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). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2007). 3. A stomach disorder was not incurred in or aggravated by service, and was not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2007). 4. Type II diabetes mellitus was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter: Duty to Notify and Assist The VA has a duty to provide specific notification to the veteran and assist him with the development of evidence pursuant to the Veterans Claims Assistance Act (VCAA). The Board finds that the content requirements of a notification letter 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 February 2001, May 20001, October 2002, December 2002, February 2003, March 2003, April 2003, July 2003, March 2004, May 2005 February 2007 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 letters specifically informed the veteran that he should submit any additional evidence that he had in his possession. Although some of the letters were provided after adjudication of the claims, the veteran was subsequently afforded an opportunity to submit evidence and the claims were readjudicated. Therefore, there was no prejudice due to the timing of the letters. 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. His service medical records and post service treatment records have been obtained. He has had a hearing. He was also afforded VA medical examinations, and an appropriate medical opinion was provided. 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 Hearing Loss. During the hearing held in December 2007, the veteran testified that he was exposed to loud noise during his period of service from 1974 to 1977. In particular, he recounted exposure to noise from generators, heavy trucks, and gun fire. He stated that he was not treated or diagnosed with hearing loss during service, but he expressed his opinion that this noise exposure in service resulted in hearing loss which was noted on separation from service and again later when he was in the reserves. 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). In reviewing the older evidence which is of record, the Board notes that the findings varied significantly between the various examinations. On service entrance examination in March 1974, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 X 0 LEFT 25 5 0 X 0 The service medical records do not contain any complaints or findings of hearing loss. On separation from service in April 1977, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 5 0 LEFT 35 25 20 15 30 On examination in July 1980 for the purpose of enlistment in the Army reserve, the audiology test results were noted to reflect that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 30 45 40 LEFT 20 5 5 25 30 It was stated that there was defective hearing of the right ear. Subsequently, however, when tested in April 1987 in connection with reserve service, the veteran's hearing was within normal limits. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 05 05 10 LEFT 05 05 05 05 05 A VA audiology examination conducted in July 1998 reflects that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 15 45 LEFT 15 20 20 25 60 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 94 in the left ear. A private medical record dated in April 1999, apparently from the veteran's civilian employer, reflects that an audiology test conducted in November 1991 had revealed normal hearing in both ears, while a test conducted in April 1999 showed significant hearing loss, particularly in the right ear. A VA examination conducted the next year in 1999 reflects that the veteran was found to have deafness of the right ear as he unable to hear bone conduction on the right ear, and was barely able to hear air conduction. A VA audiology consultation record dated in December 2002 noted that the veteran had ""questionable functional hearing loss." It was noted that he did not respond when asked to repeat words played at 100 decibels, but when asked to take off his earphones at a level of 60 decibels, he removed them. Finally, the report of a VA hearing loss examination dated in March 2006 reflects that the examiner reviewed the veteran's claims file and stated that pure tone audiometry tests were noted throughout the veteran's file, and all were inconsistent illustrating poor intra-test consistency. In addition, it was noted that during the March 2006 examination, the veteran refused to sit in the sound treated booth, and as a result no audiometric studies could be completed. The Board finds that there is insufficient evidence to show that the veteran currently has a hearing loss disability. The past examinations have varied significantly, and there is an indication in the examination of 2002 that the veteran was exaggerating any hearing loss he may have. In light of the March 2006 medical opinion which indicates that past test results are inconsistent, and in light of the fact that the veteran refused to undergo current testing, the Board concludes that the evidence which is of record is insufficient to demonstrate that the veteran has hearing loss of sufficient severity to meet the requirements of 38 C.F.R. § 3.385. Accordingly, the Board concludes that a hearing loss disability was not was incurred in or aggravated by service. II. Entitlement To Service Connection For Tinnitus. The veteran testified during the hearing held in December 2007 that that he was exposed to loud noise during service. He also reported having drainage in his ears, and having ringing. He did not recall whether he had complained of the ringing on separation from service, but that he had it throughout his reserve service and he had it now. The veteran's service medical records do not contain any references to tinnitus. The report of a medical examination conducted upon separation from service in April 1977 reflects that clinical evaluation of the ears was normal. The veteran stated that he was in good health. The report of an ear disease examination conducted by the VA in July 1998 reflects that the veteran reported having a periodic ringing in his ears. The report shows that the veteran stated that the onset of the tinnitus had been during his period of service A private medical record dated in October 1998 reflects that the veteran reported that he had longstanding ringing in his ears since 1980. The physician noted the history of noise exposure during service as a tank gunner and afterwards, and stated that the tinnitus was consistent "noise-induced. The report of a VA examination conducted in May 2006 reflects that the examiner concluded that the veteran's tinnitus was not caused by noise exposure or any head injury during service. The examiner further stated, however, that it was as likely as not that the hearing loss and tinnitus were caused by the noise exposure after active service while the veteran was in the reserves and while working as a professional mechanic. After considering all of the evidence which is of record, the Board finds that the veteran's testimony is credible and adequately demonstrate the occurrence of acoustic trauma during active duty service and reserve service. The Board notes also that his testimony of exposure to noise in service is confirmed by service personnel records showing that he had duties operating generators and tanks. The Board also finds that the medical evidence adequately demonstrates that the veteran currently has tinnitus. Finally, the Board concludes that the private opinion of October 1998 and the VA opinion linking current tinnitus to noise exposure during service adequately demonstrate the existence of a nexus between current tinnitus and service. Accordingly, the Board concludes that tinnitus was incurred in service. III. Entitlement To Service Connection For A Stomach Condition, To Include Consideration As Secondary To A Service Connected Disability. The veteran's service medical records are negative for any references to a chronic stomach condition. Although a service record dated in April 1975 reflects a complaints of stomach problems, the complaints apparently resolved as subsequent service medical records are negative. In addition, the report of a medical examination given for the purpose of his separation from service is negative for references to stomach problems. The earliest post service records reflecting the presence of a stomach disorder are from many years after service. Although a letter dated in May 2001 from Joseph A. Weber, M.D., indicates that the veteran had a stomach condition since service, the Board notes that the fact that the veteran's own account of the etiology of his disability was recorded in his medical records is not sufficient to support the claim. Another letter from Dr. Weber dated in March 2002 contains similar information, but notes that Dr. Weber had only treated the veteran since 1997. In LeShore v. Brown, 8 Vet.App. 406, 409 (1995), the Court held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence...[and] a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. The Board also notes that a letter dated in May 2001 from a medical secretary is to the effect that the veteran was treated by a deceased physician between 1977 and 1988 for disorder including "his severe chronic gastritis and ulcer disease which he had since service." The Board notes, however, that there is no actual treatment records to confirm this account. Moreover, the account is contradicted by the service medical records themselves which do not show any chronic disorder to be present and do not contain any mention of an ulcer. The Board further notes that the written statement from the medical secretary does not contain any specific dates of treatment, and the secretary is not shown to be qualified to render an opinion as to the exact diagnosis warranted by the veteran's reported complaints. Therefore, the statement cannot be said to demonstrate that an ulcer was manifest to a compensable degree within a year of separation from service. The veteran's also contends is that his current stomach problems are secondary to medication taken to treat a service-connected disability. The veteran has previously established service connection for acne vulgaris and folliculitis, rated as 50 percent disabling; hypertension, rated as 10 percent disabling; and a corneal scar of the left eye, rated as noncompensably disabling. He asserts that the skin disorder contributed to the development of the stomach disorder. The applicable regulation provided that service connection may be granted for disability shown to be proximately due to or the result of a service-connected disorder. See 38 C.F.R. § 3.310(a). This regulation has been interpreted by the Court to allow service connection for a disorder which is caused by a service-connected disorder, or for the degree of additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder. See Allen v. Brown, 7 Vet. App. 439 (1995). Recently, the regulation was revised to incorporate the Court's ruling. See 71 FR 52747, Sept. 7, 2006. The regulation now provides as follows: (a) General. Except as provided in §3.300(c), disability which is proximately due to or the result of a service- connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice- connected disease or injury was aggravated by a service- connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The Board notes that the revision to the regulation incorporated interpretations of Court decisions which were already being applied by the VA. Accordingly, a remand to have the RO apply the revised regulation is not required. The Board has noted that the veteran has expressed his own opinion during the hearing that the medication taken for his service-connected disabilities had caused him to develop stomach problems. However, the Board notes that the veteran is not competent, as a lay person, to make such a medical judgment. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The medical evidence has been presented on the issue of secondary service connection for a stomach disorder weighs against the claim. The report of a gastrointestinal examination conducted by the VA in March 2006 shows that the examiner concluded that the veteran had a history of gastritis and gastro paresis, but that there was no connection between those conditions and his skin condition. For these reasons, the Board finds that the veteran's current stomach problems were not present until years after service, and were not caused or aggravated by service-connected disabilities. Accordingly, the Board concludes that headaches were not incurred in or aggravated by service, and were not proximately due to or the result of a service- connected disability. IV. Entitlement To Service Connection For Diabetes Mellitus, Claimed As Secondary To Herbicide Exposure. 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 diabetes 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. Initially, the Board notes that the veteran did not have service in Vietnam, and therefore, the presumption pertaining to development of diabetes following exposure to herbicides does not apply in the present case. In reaching this conclusion, the Board has noted that his DD 214 reflects that his awards did not include the Vietnam Service Medal and the Vietnam Campaign Medal. The DD 214 further indicates that he had no foreign service. The controlling regulation, 38 C.F.R. § 3.307(a)(6), specifically states that a legal presumption is limited to veterans who "served in the Republic of Vietnam" and to those whose "conditions of service involved duty or visitation in the Republic of Vietnam." There is no official confirmation that the veteran visited Vietnam. Further, the veteran has not provided or identified any additional evidence supporting his contention that he was exposed to herbicides during active duty. Although the veteran has presented his own testimony which was to the effect that something was sprayed in areas where he was stationed, the veteran's own testimony does not adequately demonstrate exposure to Agent Orange. Therefore, the presumptions pertaining to herbicide exposure to not apply in the present case. With respect to a claim for direct service connection for diabetes, the Board notes that the veteran's service medical records do not contain any references to diabetes. The report of a medical examination conducted upon separation in April 1977 is likewise negative for references to diabetes. It was noted that urinalysis was negative for sugar. Similarly, post service medical examinations conducted in July 1980 and later in connection with reserve service are likewise negative for references to diabetes. The report of medical history given by the veteran in July 1980 reflects that he denied a history of sugar in the urine. In addition, the Board notes that there is no medical opinion that the diabetes may be related to service. Based on the foregoing evidence, the Board finds that diabetes was not present until many years after service and there is no competent evidence that the veteran's current diabetes is related to service. Accordingly, the Board concludes that diabetes was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. ORDER 1. Service connection for hearing loss is denied. 2. Service connection for tinnitus is granted. 3. Service connection for a stomach condition, to include consideration as secondary to a service connected disability, is denied. 4. Service connection for diabetes mellitus, claimed as secondary to herbicide exposure, is denied. REMAND The Board finds that additional development is required with respect to the claims for service connection for residuals of a head injury and a psychiatric disorder. The Board also notes that the report of a mental examination conducted by the VA in March 2005 reflects that the veteran gave a history of sustaining a head injury in service, but then working for about 22 years as a machine technician with a manufacturer until he got sick with "nerves" and was hospitalized in Ashland, Pennsylvania. Since that hospitalization, he had never been reemployed. The Board notes that that hospitalization as described by the veteran appears to have represented a significant tuning point with respect to the currently claimed mental disabilities. However, the records from that hospitalization have never been obtained. The veteran previously provided an authorization form pertaining to treatment at the Ashland Hospital for gastritis, however, the Board's review of the claims file does not indicate that he was requested to provide an authorization to obtain the psychiatric treatment records from that same facility. The Board has noted that the claims file already contains hospital reports from the Ashland facility dated in September 1999, September 2000 and January 2001; however, they pertain only to gastritis and other gastrointestinal disorders, and do not contain any references to psychiatric problems. The Board concludes that additional efforts are required to clarify whether additional records exist, and if so, to obtain them. Although the date of the reported hospitalization for "nerves" is not specified in that VA medical report, the Board notes that on a claim for unemployability benefits, the veteran reported that his disability first affected full employment in October 1998 and that he had last worked full time in September 2000. Presumably, the date of hospitalization falls between October 1998 and the end of 2000. The Board concludes that all documents from the Ashland Regional Medical Center pertaining to treatment for a psychiatric disorder from 1998 through 2000 should be obtained. With respect to the claim for an increased rating for hypertension, the Board notes that a VA treatment record dated in August 2004 indicates that the veteran was hospitalized at the "Ashland Hospital" in November 2003 for blood pressure. Those records should also be obtained. The Board further finds that the examination which was previously conducted in 2003 is not adequate for rating purposes. In this regard, the Board notes that the examination report is almost five years old and does not adequate reflect the current severity of the disorder. Thus, additional VA examinations are required to determine the severity of the veteran's service-connected hypertension. 38 C.F.R. § 4.2. Accordingly, the case is REMANDED for the following action: 1. The RO should make arrangements to obtain all hospitalization records pertaining to a psychiatric disability from the Ashland Regional Medical Center for the period from 1998 through 2000, and records of a hospitalization for hypertension in November 2003. 2. The veteran should be afforded an examination to determine the severity of the veteran's service-connected hypertension. The claims folder should be forwarded to the examiner, and all necessary tests should be done. A complete rationale should be provided for all opinions expressed. Multiple blood pressure readings should be obtained. The examiner should review these readings prior to completing the examination report. The examiner should indicate whether continuous medication is required for control. 3. Thereafter, the RO should review the claims file and ensure that all necessary notice and development has been undertaken. If any development is incomplete, undertake appropriate corrective action. Stegall v. West, 11 Vet. App. 268 (1998). 4. Then, the RO should readjudicate the veteran's claims. If the benefits sought on appeal remain denied, the appellant and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. The requisite period of time should be allowed for response. The veteran's TDIU claim is inextricably intertwined with his other claims, inasmuch as a grant of service connection for any disability could affect the outcome of his TDIU claim. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). See also Kellar v. Brown, 6 Vet. App. 157 (1994) and Harris v. Derwinski, 1 Vet. App. 180 (1991). And therefore, further consideration of this claim must be deferred to avoid piecemeal adjudication. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Hoyer v. Derwinski, 1 Vet. App. 208 (1991). 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs